Short or Long, Children or
no Children, a ‘Marriage is
a Marriage’

Kieran Ball

Having children changes everything. Ask any mother or father and they will tell you that the birth of their child meant not only the recentring of their lives, priorities and finances, but also many a sleepless night. 

Until recently, the presence, or not, of any children was seen as a factor which may lead the court to depart from an equal split of the matrimonial ‘pot’ when deciding how a divorcing couple’s assets should be shared. Similarly, the length of the marriage was a consideration which may also lead the court to depart from the principle that all matrimonial assets should be shared equally between the divorcing parties. 

As a result, the fact that a marriage had been short and childless was seen as a strong reason that could justify the unequal division of matrimonial assets.

The significance of both these factors was explored by Mostyn J. in the recent case of E v L [2021] EWFC 60, which involved a couple that had been married for 2 years and had no children. The Husband ran a successful business producing live music events and had supported the Wife financially throughout the course of the marriage.

In short, Mostyn J’s conclusions were that: 

  1. the fact that the marriage was childless is irrelevant to whether there should be a departure from the principle that matrimonial assets should be shared equally;
  2. there is no reason to distinguish between assets that accrued over the course of a short marriage, and those accrued over a longer marriage; and 
  3. the duration of the marriage will be taken into consideration as the sum of the assets accrued over a shorter period is likely to be less by virtue of the fact that it was a short marriage. 

The potential implications of Mostyn J’s decision for divorcing couples are explored below.

The equal sharing principle:

It is important to underline that the division of assets in E v L was based on the application of the equal sharing principle, rather than on any assessment of the parties’ needs.

It is more common that the assessment of each party’s respective needs will be the primary factor guiding the court when deciding how to split marital assets fairly. In a needs-based case, the presence of children will continue to be a relevant factor. 

The equal sharing principle becomes relevant where there is enough money in the matrimonial ‘pot’ to meet the needs of both parties’ comfortably and effect a clean break. This was the case in E v L where there were total assets of £9,200,000 and the marital assets totalled just over £3,000,000. 

Childlessness:

In E v L it was argued for the Husband that the fact that the parties’ had no children should justify an unequal division of assets in his favour. The reasoning being that ‘having a child denotes a completely different category of commitment’ between a married couple. Accordingly, the lack of any children should be reflected in any award.

This argument was rejected.  The sharing principle centres on the value of the assets accrued through the marriage exclusively, deeming the contributions of each party to be equal. Therefore, there is no reason why the lack of any children should make any material difference. 

The Length of the Marriage:

It was also argued for the Husband that the shortness of the marriage, in this case 2 years, formed an exception to the rule that the application of the equal sharing principle means that all matrimonial assets are divided equally. 

Likewise, this argument was rejected. Mostyn J. reasoned that there is ‘no logical reason to draw a distinction between the assets accumulated over a short period and those accumulated over a long period’. Despite this, it was acknowledged that there remains the possibility that an exception might exist for dual earners that have largely kept their finances separate throughout the course of the marriage, as was the case in Sharp v Sharp [2017] EWCA Civ 408.

Conclusions:

As was outlined above, the division of assets in the majority of cases before the Family Court will be decided on an assessment of the parties’ needs. Nevertheless, the decision in E v L gives important clarification for those to whom the equal sharing principle will apply, representing a refinement of the position in Sharp v Sharp.

Of course, this is a recent decision and, as such, is yet to attract any judicial comment. It will be interesting to see how the judgment is received. However, given the clarity and robustness of Mostyn J’s reasoning it is likely to carry significant weight.

According to E v L, the length of the marriage and whether there are any children are irrelevant factors when applying the equal sharing principle. For divorcing couples in the context of financial remedies proceedings a marriage is a marriage, no matter how long, and having children changes nothing. 


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