15 January 2018

When is a short marriage not a short marriage?

A simple question? Yes, but there is no simple answer, after the much reported Court of Appeal Court decision in Sharp –v- Sharp [2017}, when the principle of an equal division of assets and property was varied in favour of the wife on the basis of several factors, including the length of the marriage.

This decision has made it clear that the long-established principle may still be appropriate in many cases, but should not be a blanket rule.

One of the factors which can often justify a departure from equality is the length of the marriage. A short marriage would arguably justify the court moving away from a straightforward division of all of the assets, and instead focusing more on the contributions made by each of the parties in order to achieve an outcome which is fair.

So what does a short marriage look like? The answer is that following Sharp, nobody quite knows. Increasingly couples will live together before marriage, and the court will often add those years of “settled relationship” to the length of the marriage. This could unwittingly lead to an unintended and unwanted sharing of pre-marital assets brought to the marriage by one spouse, which should have fairly been excluded from the pot.

The best way to avoid uncertainty, and indeed to protect individually-held assets, is to put in place a pre-nuptial agreement before you marry, or a post-nuptial settlement after you marry.  Current case law suggests that these types of agreement will be upheld by the court as long as they are considered to be fair.

Romantic? No. Pragmatic, yes. And let’s face it, there’s nothing romantic about eye-watering legal costs when picking through the spoils of a ruined marriage.

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About the Author
Nadia Davis, Partner
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