In E v L [2021] EWFC 60, Mostyn J dealt with a financial remedies application for a short and childless marriage. In his judgment, Mostyn J provides clear guidance on whether a childless or short marriage justifies a departure from the equal sharing principle and gives information on the valuation of business assets. This article focuses on the principles adduced from the judgment concerning the relationship between short/childless marriages and the sharing principle.

Facts

W made an application for financial remedies following a marriage which lasted approximately two years and resulted in no children. W was a housewife, who had previous experience modelling and as a proprietor of a lingerie, nightwear, and swimwear company. Contrastingly, H had reached the “pinnacle” of his career as a successful production manager for live music events, maintaining interests in numerous companies.

The difference between the positions of the parties was “extraordinary”, as W sought a lump sum of £5.5m and H believed £600,000 was appropriate. Mostyn J noted that this difference was “the product of imprecision within the case-law combined with intransigence and dogmatism by the parties in the pursuit and defence of the claim.”

H’s position was that the “short childless marriage” of the parties does not warrant the application of the equal sharing principle but raises a case where W “should be confined to very conservatively assessed needs.”

Childless marriage

Counsel for H addressed the issue of whether a childless marriage requires a departure from the equal sharing principle in his skeleton argument:

“There is a consistency of judicial reservation about the sharing principle applying to assets generated over a short childless marriage that sings out from [the] authorities…We say that the factual matrix of this case is a paradigm example of a case where the sharing of marital acquest, if indeed there is, on proper analysis, any acquest, is unjustified. This is a husband who, in his autumn years, through this marriage continued in a business in which he has worked for the whole of his adult life. The foundation of that business, the continuation of that business during this short, childless marriage had nothing to do with the joint endeavours of the parties.”

In reaching his decision on this point, Mostyn J referred to various cases including XW v XH [2019] EWCA Civ 2262 and Miller [2006] UKHL 24, insisting that childlessness was not the reason for upholding the unequal division of assets in the latter. In consideration of the case law, Mostyn J concluded that the fact a marriage is childless is irrelevant to whether the equal sharing principle should be departed from, warning that attempting to evaluate the quality of a marriage or arrangements made within it, will “almost inevitably trigger subconscious discriminatory practices”.

Mostyn J cautioned: “In my judgment for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls, and should be avoided at all costs.”

Short marriage

The next point to consider was whether the short duration of a marriage justifies a departure from the sharing principle. With reference to GW v RW [2003] 2 FLR 108, in which he appeared, Mostyn J referred to various judicial hints that a short-marriage exception might apply in a small minority of cases. However, Mostyn J confirms that no distinction should be made between accrual of assets over a short marriage and accrual over a longer marriage, stating:

“I now figuratively hold my hand in the flames and recant. There is absolutely no logical reason to draw a distinction between an accrual over a short period and an accrual over a long period. As Lord Nicholls pointed out, the statutory factor of the duration of the marriage will be reflected in the nature of things by the fact that in a short marriage the accrual will almost inevitably be less than in a longer marriage.”

Mostyn J did admit however, that there is a rare exception to this when non-family assets are generated by one spouse alone during a short marriage and those assets have been kept separate, with both spouses being financially and independently active, as acknowledged in Sharp v Sharp [2017] EWCA Civ 408. It was stressed that this is a rare exception, as a case where there can be non-discriminatory unequal sharing of matrimonial property earned in a short marriage is “as rare as a white leopard.”

Decision

Taking these principles into account, Mostyn J insisted “there is no good reason, at all, to depart from equality in the division. This case is not a white leopard.” W was awarded a lump sum of £1.5m on a clean break basis, providing her with 50% of the marital acquest.

Implications

There are two main principles which can be adduced from this judgment, and which will be of significance for financial remedy proceedings concerning short childless marriages:

  • whether or not the parties have children does not impact on the level of commitment between them and justify a departure from the equal sharing principle
  • the length of a marriage does not impact the sharing principle, the courts should not distinguish between an accrual over a short period and an accrual over a longer period

The full judgment is here.

Pietra Asprou