This article by Jennifer Allen looks at the extent to which either pre or post-nuptial agreements will be taken into account by the Court and also looks forward to the impact Brexit may have on this area of law.
How long is my Marriage?
- AuthorMarcus Crawley
When you first read the question that forms the title of this article, one might automatically think that the answer is obvious; 'the amount of time that has passed since your wedding day'. This is certainly how to work out which anniversary you were celebrating during your marriage.
Despite this seemingly obvious answer, if divorce proceedings are issued, you may find that the answer is different.
Under Section 25(2)(d) of the Matrimonial Causes Act 1973, the court must give consideration to:
'...the age of each party to the marriage and the duration of the marriage.'
The 'duration of the marriage' has a direct impact on the financial outcome of a divorce case.
Impact of Cohabitation
When considering the duration of the marriage, the court can take into consideration the period of pre-marital cohabitation where it moves 'seamlessly' into the marriage. This can be from the date parties move in together or the date on which the Court decides that the parties began to live together as spouses (despite not yet being married).
Therefore, if you and your spouse lived together before you got married, this time could be added to the duration of your marriage for the purposes of financial remedy proceedings.
When does my marriage end?
With regard to the end of a marriage, it is now more common for the courts to look at the date of separation rather than the date of pronouncement of the final decree; decree absolute.
In the case of GW v RW , the Judge said that 'the end of the marriage is always taken as the date of separation rather than the date of decree absolute.'
Whilst this remains the common approach, the recent case of BD v FD  (as explored further below) has added a further consideration with regard duration of the marriage, when the Court looks at the contributions either party has made to the marriage.
Why does the length of my marriage even matter?
The length of the marriage will potentially have a significant impact on the claims of the parties e.g. a financial claim following a thirty year marriage will result in a different result to one arising after a three year marriage.
When identifying matrimonial and non-matrimonial property to decide what is 'in the pot' for division, one factor that the Court will look at when an asset was purchased. This will be of importance in a short marriage. This will be less relevant in a long marriage. The Court may also look at any increase in value of matrimonial assets during the course of the marriage. Again, this is less important in a long marriage.
The length of the marriage is just one of the factors that will be considered by the court when considering what financial award to make/what financial award they would make if the matter progressed to a final hearing. These are considerations that your matrimonial solicitor will also have in mind when considering what offers of settlement could be made and are listed in statute, referred to by the Court at Section 25 of the Matrimonial Causes Act 1973.
Where the marriage has been short, when deciding what counts as matrimonial property, the court will look more at the contributions of each party. Even if a marriage is short, if the parties have had children, the court will approach the case ina different manner than if the parties hadn't had children.
Where the marriage has been long, the starting point the Court will use is equal division of the assets to provide equality. The court will need good reason to depart from equality when looking at the finances. One such reason for departing from equality is the needs of the parties and primary consideration being given to children.
BD v FD 
In the recent case of BD v FD , the parties had been married 11 years and had four children aged between five and ten. The husband had significant assets, the majority of which were inherited and he worked on managing the family trusts. The wife hae ceased paid employment when the parties married .The Judge in that case stated that when considering the needs of the parties, the first consideration should be given to any minor children. Following this, the factors that impact on the Court's assessment of needs are:
1) The length of the marriage;
2) The length of the period additional to the marriage during which the spouse will be making contributions to the welfare of the family;
3) The standard of living during the marriage;
4) The ages of the parties; and
5) The available resources.
Whilst point 2 of this exercise did not extend the 'duration of the marriage' beyond the 11 years that the parties had been together, what it did do was increase the period of contribution that the wide had made to the family. She was going to be caring for the parties' young children for a number of years to come and the Court considered that her total contributions to the family were therefore around 30 years. This had a significant impact on the award that the Court eventually made.
Given the above, it can be seen that the question 'How long is my Marriage?' is not quite as straightforward as one might initially imagine and the answer can have a significant impact on financial arrangements following the breakdown of a marriage and specialist advice is therefore recommended.
If you require assistance in relation to the financial arrangements between you and your spouse following the breakdown of your marriage, please feel free to contact a member of our Family Law Department on 01242 574244 and we will be happy to meet you and discuss your situation.