It is now established in England and Wales than when a couple divorce, the matrimonial assets should normally be divided between them equally, unless there is a good reason to depart from equality. In a large number of cases, especially where the matrimonial assets are limited or where there are children of the family to consider, an unequal division of the matrimonial assets is far more likely to be the end result. However, it has often been argued that if a marriage was ‘short’ and if there are no children of the family to consider, the limited duration of a marriage may provide another good reason to depart from the principle of equality.
It was this issue that was the focus of the case in Sharp –v- Sharp, heard by the Court of Appeal in June 2017. The parties in this case met in 2007, married in 2009 and separated in 2013. The duration of the marriage was described by the original Judge, Sir Peter Singer, as, “not so desperately short … as some, but still by no means lengthy.”
The matrimonial assets amounted to £5.45m and it was accepted that a large part of those assets had been generated by the wife’s receipt of significant bonus payments from her employment. In November 2015, Sir Peter Singer awarded the Husband £2.75m, roughly half of the matrimonial assets. The wife appealed against this decision. Her view was that the husband should have received £1.3m, representing half of the total value of two properties held by the parties. That would in turn mean that she should retain the other assets of the marriage, largely generated by her bonus payments.
The Court of Appeal considered the issues at length. They concluded that in this particular case there existed a ‘perfect storm’ of four factors that when combined together, did present a good reason to depart from equality. Those features were:
– The short duration of the marriage (6 years from cohabitation to separation);
– There were no children of the marriage;
– Both parties were engaged in their own careers;
– There was a degree of physical separation of their personal finances.
However, the Court of Appeal did not agree that £1.3m would provide for a fair outcome in this particular case. The high standard of living enjoyed by the parties during the marriage and the need for the husband to have some capital fund for his future financial needs justified him receiving a further sum of £700,000. The husband was therefore awarded a total of £2m, to be provided by him retaining a property worth £1.1m with the wife to provide him with a lump sum of £900,000.
Family lawyers up and down the country are now left scratching their heads at the implications of this decision. It poses more questions than answers in the cold light of day. If the duration of the marriage had been 10 years rather than 6 years would the Court of Appeal have agreed with Sir Peter Singer? If the duration of the marriage had been only 3 years would the husband have received the £1.3m that the wife considered to be fair?
We do not know the answers to these questions. If the case tells us one thing, it reinforces that a pre-marital agreement between spouses may be the best way to try and achieve a degree of certainty over how the assets of the marriage should be divided in the event of divorce.