E v L [2021] and updates to the determination of financial settlements following short, childless marriages

The issue of financial settlements on divorce following short, childless marriages has been a topic of discussion among family law practitioners and individuals undergoing such divorces. In 2017, the Court of Appeal made a notable departure from the ’sharing principle’ in the case of Sharp v Sharp which concerned the short, childless marriage of a very successful businesswoman and her consultant husband, which you can read more about here. However, the approach to equal sharing in such cases was clarified in 2021 in the case of E v L. Mostyn J ruled that the fact that the marriage was short and childless did not justify a departure from equal sharing and therefore granted the wife an equal share of the matrimonial acquest.  

Background of E v L: 

The husband, aged 66, and wife, aged 61, had a total relationship spanning around five years, with no children from the marriage. During their relationship, the wife had worked for some periods in different roles, including modeling and working at her father’s hotel but was generally considered the ’homemaker’ and was financially supported by the husband, a successful production manager for live music events. 

The wife sought a lump sum of £5.5 million, which was her calculation of half of the marital acquest. In stark contrast, the husband maintained that he should pay the wife a lump sum of £600,000 arguing that because their marriage was short and childless, this was not a case for equal sharing.  

Instead, he maintained that the wife should be confined to very conservatively assessed needs.  He contended that rather than a strict application of the equal sharing principle in relation to such marriages where both spouses have been in full-time employment and where only some of their finances have been pooled, fairness may require a reduction from a full 50% share or the exclusion of some property from the 50% calculation. 

The court did not agree with the husband’s arguments. 

Decision: 

On the topic of the (short) length of the marriage, the husband’s argument, summarised above, was rejected. Mostyn J concluded that there is no logical reason to draw a distinction between an accrual over a short period and an accrual over a long period. He referred to Lord Nicholls in Miller; Mcfarlane who noted that the “equal sharing principle is applicable as much to short marriages as to long marriages. A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring”, and that this will affect the quantum of the financial fruits of the marriage to be shared.  

He did, however, recognise from Miller a ‘possible exception for non-family assets generated by one spouse alone during a short marriage where those assets have been kept separate and where both spouses have been financially and independently active.’ He noted that the facts of Sharp met this exception, and that the exception would apply only in a “fringe of cases”, of which E v L was not one. 

On the topic of childlessness, the court took a similar approach. Mostyn J warned that for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is ‘to make windows into people’s souls, and should be avoided at all costs’ and that in applying the sharing principle it is ‘not merely invidious, but extremely dangerous’ for the court to attempt an evaluation of the quality of a marriage or of the arrangements made within it, as to do so will almost inevitably trigger subconscious discriminatory practices.  

In his decision, Mostyn J held that the marital acquest should be shared equally and that there was no good reason to depart from equality in the division as ‘this case is not a white leopard’. The husband was therefore ordered to pay the wife a lump sum of £1,515,000. 

Considerations: 

In Sharp v Sharp, the Court of Appeal deviated from the sharing principle in a six-year marriage. However, this was not subsequently followed in E v L as the court determined that equal sharing applied to short marriages just as much as long marriages. It is important to note that the facts of Sharp were somewhat exceptional: it was a short marriage with no children where there were dual incomes and where the parties kept their finances separate. Very few cases are likely to meet this threshold meaning that in most cases the sharing principle may apply to short, childless marriages, as much as longer marriages where there are children. 

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Related Reads: 

Vardags | Court of Appeal departs from equal sharing principle for successful business woman 

Vardags | Trader challenges divorce settlement which gave her husband £2.7m 

Vardags | Marriage Length and Divorce Settlements