Short marriages, White Leopards & Orwellian oxymorons – Benjamin’s 2021 Case of the year - E v L [2021] EWFC 60

Benjamin Pitman

As is customary and appropriate for this time of year, I have been reflecting on the year gone by. So, as is so often the way, whilst in the bath tub with a glass of chateauneuf du pape, I began ruminating on some of the most impactful family law cases of the year gone by. For me E v L stands out. 

The first thing to note with this case, is that if you type in “E v L Judgment” into google, the top result that comes up is the 1984 thriller/mystery film “Evil Judgment”. Perhaps a sentiment the Husband in this case might agree with. 

As family lawyers, in the interest of settling a case, we often hope that each parties’ open positions prior to a final hearing are as close as the cheese and wine at a government garden party. This was not the case in E v L. The parties were a whopping £4.9 million apart. There were to be no last minute out of court settlements here.

The most pertinent feature in the factual matrix of this case, is that this was a short childless marriage. Having begun their relationship in December 2015, the parties married in June 2017, and separated in December 2019. Financial proceedings ended in July 2021. 

To illustrate the shortness of this marriage, from December 2015, the commencement of the relationship, to the judgment date, circa 35% of the parties contact with each other was in financial proceedings. 

How then in these circumstances should the length of the marriage be considered when determining a family law award? It was the Husband’s case, made by the erudite Simon Webster QC, that as this was a short childless marriage, there should be no sharing of the marital acquest, and any award to wife should be assessed by reference to her conservatively assessed needs. 

Mostyn J was not persuaded. On the significance of the childlessness of the marriage, he cited Munby J, who references a book that I am going to pretend I haven’t just heard of: 

In short, the marriage is a marriage. The fact that it is platonic, and without a sexual component, is, as a matter of long-established law, neither here nor there and in truth no concern of the judges or of the State. One needs look no further than Nigel Nicholson's Portrait of a Marriage, his acclaimed account of the unusual marriage of his parents … to see how happy and fulfilling a marriage … can be. But it is really none of our business. As the first Elizabeth put it, we should not make windows into people's souls.

In a post White v White landscape, where the contributions of each party to a marriage are of equal worth, why should the presence of children have any impact on the sharing principle? No obvious answer comes to mind. 

If the childless state of the marriage is considered irrelevant for the purposes of a sharing award, what approach should be taken to short marriages? Should the brief length of the marriage have any impact on the assessment of the sharing award? 

This question requires a lawyers’ answer; “yes and no”. As a matter of principle, contributions to the marital acquest in a short marriage shall be seen as equal to the contribution to the marital acquest in a long marriage. Otherwise we are left with, as Mostyn J opines with a linguistic flourish, an “Orwellian oxymoron that all contributions are equal but some are more equal than others”.

Practically however, the length of the marriage will have an impact, as in a shorter marriage, there is less time for the marital acquest to accrue. 

 Moystn J summarises the position as follows: 

“For my part I would say… that a case where there can be a legitimate non-discriminatory unequal sharing of matrimonial property earned in a short marriage will be as rare as a white leopard”. 

E v L has highlighted two important things to me. Firstly, the family court continues to strive to ensure discriminatory forces do not underpin the jurisprudence. Secondly, reading this judgment, along with JL v SL [2015] EWHC 360 (Fam), it has occurred to me that if family lawyers were a house in Game of Thrones, the animal pride and centre of our house banner would invariably be the “White Leopard” and the man leading the charge, none other than Mostyn J, first of his name.

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