We know that the law treats unmarried couples very differently from married couples. Recently, whilst reading comments in a public divorce forum, I saw several members giving someone inaccurate legal information about the length of a relationship upon divorce. The issue had cropped up before and had each time caused confusion. The poster said she had lived with her husband for 20 years before marriage and they had 3 children under 14. She had been a full-time mother since the children were born. The marriage had lasted a year as her husband had decided it wasn’t working. He told her that as they had only been married for a year and the assets were all in his name, that she would only receive a share of any assets accrued in that year and no spousal maintenance. Several people agreed and said it was a very short marriage and she had no rights to assets her husband had built up prior to the marriage, as unmarried spouses are treated badly by the law. The legal information the non-legally qualified members provided was wrong. If she acted upon it, she could go on to agree a settlement that didn’t meet her future needs. Her legal position was much stronger than she appreciated, or the forum members realised. Sometimes a short marriage isn’t quite what it appears. Also, even if a marriage is short but there are children, it can significantly impact the division of assets.
When is a short marriage not a short relationship?
The starting point for sharing assets is that they are shared equally (50:50) as spouses are equal parties in a marriage and should share “the fruits of the matrimonial partnership” equally. When deciding what (if any) financial orders to make, the courts must have regard under section 25 of The Matrimonial Cause Act ‘MCA’ 1973 to “all the circumstances of the case” (the “section 25 factors”). The first consideration is given to the welfare whilst a minor of any child of the family who has not attained the age of eighteen. When assessing “needs” the court will have regard, in particular, to the matters set out in section 25(2).
Amongst the matters to be considered when assessing the needs of each party, are the age of the parties and the length of their marriage. Since 2003 the courts have taken the stance that when a relationship moves seamlessly from cohabitation to marriage, without any major alteration in the way the couple live, that the cohabitation should be taken into consideration. The cohabitation and marriage are usually added together to determine the length of the ‘relationship’. The date for the end of the marriage for this purpose, is the date of separation and not the date of Decree Absolute. Assets accrued during the ‘relationship’ – cohab + marriage (don’t confuse periods where a couple date but don’t live together), will usually be subject to the sharing principle. When the court considers all the S25 factors and all the circumstances of the case, it may conclude that one parties’ capital or income needs are greater. Perhaps their earning capacity is significantly less, and they would not be able to obtain a mortgage, or they have a disability or are caring for a disabled child. Each case will turn on its facts.
Accept legal advice with caution
Online forums can be useful. People can see that they aren’t alone. However, applying legal information to the facts of a case can be complex and require years of legal training. I often see poor legal advice continually repeated online. An appointment with a solicitor could save someone many thousands of pounds if they have received inaccurate legal advice from friends or acquaintances. They can advise you about what may be in your best interests. There’s also plenty of free good quality legal information available online and we have listed some resources below. Attending mediation is a good way to avoid any hidden pitfalls and to ensure you receive accurate legal information. The mediator is impartial but does provide legal information throughout the process. They also alert you to any hidden pitfalls such as a tax liability or an issue with a course of action you intend to adopt. They signpost you to experts that can deal with these issues and often save you considerable sums of money in the long-term.
A List of Free and Accurate Legal Information Resources
Citizens Advice Bureau.
The Government Website: Money and property when a relationship ends
Resolution: Splitting up – Money and home
Money Advice Service – Divorce and separation
Sorting Out Separation – Helping you deal with relationship break-down
Gingerbread: Single Parents – Money after separation
Family Mediation Council – why choose mediation?/
ITV This Morning – Divorce/ separation helplines and links
Author: Sara Stoner, Family Mediator, Broxbourne & Potters Bar
Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (11 Locations: Milton Keynes, Bedford, Broxbourne, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford).
Read more about family mediation at: www.focus-mediation.co.uk
