The duration of the marriage is a relevant factor for the court to consider when determining the appropriate financial settlement on divorce. It is also not just the actual date of marriage that is important, any time spent living together as a couple before the marriage will also count towards the total duration of the marriage, provided the existence of a seamless transition between cohabitation and marriage.
The length of the marriage is one of the determining factors when it comes to reaching a financial settlement. Other relevant considerations include the needs of the parties as well as any children, ages and income of the parties (including the future earning potentials) and the lifestyle they have become accustomed to.
Ultimately, the court has a wide discretion when making the final financial order and will be guided in its decision by the overarching goal of fairness. This means the court will weigh such factors against one another to reach a settlement it considers fair in the context of all the circumstances of the marriage.
In England and Wales, you must have been married for at least one year before you can petition for divorce. Before then, couples can enter into a separation or post-nuptial agreement, which sets out the division of finances and care of any children. These agreements also provide possible alternatives to divorce where parties may wish to separate but remain married, as they do not alter the legal status of the marriage.
Once a year has passed, in the current absence of a no-fault divorce system, the petitioning party must demonstrate to the court that the marriage has broken down irretrievably as the first step in getting divorced. This is proven using one of the five grounds for divorce.
Case law does not give specific guidance on what the courts consider a long marriage- a marriage of 20 years will be regarded as long but it is unclear where the cut off is. Generally, a marriage of less than five years will generally be considered short.
Whether the courts consider a marriage to be long or short will result in different approaches to how the marital assets are divided. A long marriage is viewed as a partnership, with no distinction made between the respective contributions of the parties. As such, the starting point in these cases is that all of the capital should be divided 50/50 under the sharing principle.
However, in a short marriage, the parties are more likely to retain the assets that they brought into the marriage, and any redistribution of these assets is done with the intention of meeting the needs of the financially weaker party using the needs principle.
It is not always possible to cover the financial arrangements with a clean break meaning that the parties are financially separated once the divorce is finalised. In some situations, spousal maintenance is required to overcome inequalities between the parties to allow them both to enjoy a similar lifestyle to that enjoyed in the marriage, where finances allow.
In a long marriage, one party may become financially weaker having sacrificed their career and earning potential to be the homemaker meaning they have little earnings or borrowing capacity to enable them to begin their new life. In these circumstances, the financially stronger party may be required to pay spousal maintenance after the divorce to support their spouse. This is less likely in a short marriage where the parties are more likely to have remained financially more independent and any inequalities in income is not likely to be as significant.
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