Decoding the Law on Marriages Under 5 Years
I’m a divorce solicitor specialising in divorce law in England and Wales, working in the field for over 20 years. I have represented divorcing clients in very long, established marriages, with multiple children, a full lifetime of accumulated wealth and, frequently, long-running bitter and contested litigation. It is a surprising fact to many people that I find some of the most complicated and hotly contested cases, both legally and emotionally, are where the parties have had a short marriage of less than five years.
In this article, I will cover the divorce law on short marriages in the UK, focusing on what I believe is the most complex short marriage: a childless high-value marriage where a significant amount of wealth has been acquired, built, inherited or otherwise mingled in a relatively short period of time.
This can frequently happen these days: a rapidly successful technology start-up and exit, a crypto-currency windfall, a number of promotions and accelerated career progression leading to very high earnings, amongst many other examples. I am seeing an increasing number of these types of cases and wanted to write this article to provide a practical guide for what is a complex area of family law.
To understand the issues with short marriages, we must start with the basic legal principles governing financial remedy proceedings in England and Wales. These three principles are:
1. Needs
2. Compensation
3. Sharing
In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, the Supreme Court set out that financial provision on divorce or dissolution is primarily made to meet the needs of the parties but that there are two other justifications for redistributing wealth: to compensate a party for relationship-generated disadvantage and to share the fruits of the matrimonial partnership. In most long marriages, these three elements become so intertwined and commingled that it is virtually impossible to disentangle them; after 20, 30 or 40 years of marriage it will often be a moot point as to whether an award is made to meet need or to provide for a fair share. The starting point, and almost inevitably the final point, will be equality.
Short marriages put these three principles into stark relief. The length of the marriage becomes the most important factor in deciding which principles apply. In a short marriage of under five years (and a very short marriage of under three years), the sharing principle almost completely falls away. The court will still have regard to the needs of the parties, but the concept of an equal sharing of all the matrimonial assets is no longer remotely relevant.
This creates the dynamic of the short marriage divorce. One party, often the wealthier party who has built up a substantial asset pool before the marriage or during a short marriage, now potentially faces sharing that asset pool with someone to whom they have been intimately connected, and possibly committed, for as little as three or four years. The other party may well have made genuine sacrifices, or at least put themselves into a relationship of sharing and support, and feel they are entitled to an asset share to recognise their contribution.
The question then becomes what assets are subject to division. This is one of the most fiercely contested issues in short marriage cases and leads to what I term the “badge of the marriage”—namely which assets fall within the matrimonial pot and which assets are outside of it. The leading authority on this is Sharp v Sharp [2017] EWCA Civ 408, a case that neatly exemplifies the issues in short, high-value marriages. The facts were these: the parties had married in 2011 but separated three years later. The husband had entered the marriage with a fortune of some £7 million. By the end of the marriage, his wealth had increased to £10.5 million in significant part through business success and property appreciation.
The Court of Appeal found that this was a marriage of less than four years and without children. The wife’s award should be limited to her needs (generously assessed by the court at £2 million) and should not include any element of equal sharing of the husband’s pre-marital or matrimonial wealth. Most significantly, the court stated that the short length of the marriage was the critical factor in limiting the applicability of the sharing principle.
The general principle – that a short marriage does not attract a sharing principle—has been confirmed in numerous cases since, including many of the high-value cases I have been involved in over the years. However, as always with family law, the devil is in the detail. The definition of what is the “matrimonial pot” in a short marriage is one of the most factually driven, and so, litigated questions in the field.
As just a few examples from my own practice, the following scenarios have been fought very bitterly in court:
The tech entrepreneur. A software developer marries in 2022, having started his own small start-up a few years prior. The start-up shows some promise, but it has yet to be valued highly or to generate a significant cash return. During the three-year marriage, it is acquired by a large tech conglomerate for £15 million. The spouse who did not own the business argues that this is wealth that was generated during the marriage and so should be shared equally (50:50). The entrepreneur argues that the value was created through years of pre-marital work, and the marriage just happened to coincide with the liquidity event.
The city bonus. A successful investment banker marries in January. In March, they receive a £2 million bonus for work they did the previous year. They separate in November of the same year. Is that bonus matrimonial property? It was received during the marriage but was for pre-marital work.
The inheritance. Six months into the marriage, a spouse receives a £5 million inheritance from a deceased parent. Two years later, they separate. The spouse who received the money argues that this is non-matrimonial property and should not be part of any settlement at all. The other spouse argues that it was used as part of the matrimonial lifestyle once it was received and so it has become matrimonial.
The property appreciation. One spouse owned a home worth £2 million before the marriage. During the four-year marriage, both lived in the property, and the non-owning spouse contributed to renovations and maintenance of the home. The property is now worth £3.5 million. How much of that £1.5 million increase in value is matrimonial?
The legal principles for these types of questions are fairly nuanced but, in general terms, property acquired before marriage remains non-matrimonial, particularly in a short marriage. However, certain actions or facts can cause pre-marital assets to “matrimonialise”. The main ones I have seen in practice are:
1. Mingling: when pre-marital assets become so mixed with matrimonial assets that they lose their separate identity (particularly where liquid assets are moved between accounts);
2. Use for matrimonial purposes: when a pre-marital asset (such as a home) is used as the family home throughout the marriage, that asset can acquire matrimonial character, although that is unlikely in a very short marriage;
3. Active contribution: when the non-owning spouse makes active (beyond mere domestic) contributions to a business or property during the marriage, that can give rise to sharing claims in even a short marriage;
4. Transformation: where pre-marital assets are deliberately transformed or restructured during the marriage in a way that suggests they were intended to become matrimonial property.
It is for the party to prove that assets are non-matrimonial and they will need to present the evidence to the court to that effect. This can require bank statements and business valuations or property appraisals from before the marriage, which many of my clients to my surprise are not able to provide or have not thought to keep as a matter of course before they got married.
Business Growth During Marriage: The Valuation Minefield
Perhaps no issue creates as much of a minefield in short marriage cases as the growth of a business during the marriage. This is particularly true in the current economic climate where tech start-ups can hit unicorn valuations within a few years of inception, and where stock options and other forms of equity remuneration have become ubiquitous across numerous sectors.
The key question is simple to state, but devilishly difficult to answer: how do you allocate value in a business that has grown significantly during a short marriage? What portion of that growth represents a product of the matrimonial partnership and what portion represents either the continuation of pre-marital efforts (as is often the case in small, founder-led businesses) or passive market appreciation?
There is some helpful case law on the issue, but plenty of room for argument. In Jones v Jones [2011] EWCA Civ 41, a case that had in many ways set the tone for subsequent short marriage cases, the Court of Appeal was presented with a scenario where the husband’s business had grown considerably during a relatively short marriage. The court confirmed that, whilst the origin of business assets during the marriage (as distinct to pre-marital business) would in most cases be subject to sharing, the source of the assets and the contribution of each party were still relevant considerations.
More recently, in Waggott v Waggott [2018] EWCA Civ 727, the Court of Appeal wrestled with the question of bonuses earned during a short marriage that were specifically related to work undertaken pre-marriage. The court confirmed that such bonuses could not be regarded as entirely non-matrimonial in character simply by virtue of the underlying work having been undertaken pre-marriage, but equally that they should not be regarded as automatically subject to equal sharing in a short marriage.
In practice, many of these cases require sophisticated business valuation evidence. I usually instruct forensic accountants to carry out a “date of marriage” valuation and a “date of separation” valuation, and to provide a detailed analysis of what contributed to the increase in value. Was it:
- The natural fruition of pre-marital efforts (e.g. a patent that was filed before marriage and generated revenues during marriage)?
- Effort of the business-owning spouse during the marriage?
- Passive market appreciation (e.g. real estate inflation, stock market growth)?
- Contribution of the non-business-owning spouse (either direct contribution to the business, or indirect contribution through domestic support)?
- External factors (e.g. a favourable change in regulation or a buoyant economic cycle)?
The answers to these questions can have a huge impact on the settlement, swinging the difference between hundreds of thousands and millions of pounds.
Special care is required with stock options and equity remuneration. These are usually granted with multi-year vesting schedules. Consider an employee who joins a tech company, is granted a stock option package, marries two years later and divorces three years after that. At divorce, some of the options have vested (and possibly have been exercised) but others remain unvested. The options that have vested during the marriage clearly have some matrimonial character, but what about the unvested options that were granted before marriage but which will vest after divorce? That is an issue which will require careful analysis of the purpose of the option grant and the service period it is intended to reward.
I have had cases where the analysis of stock options alone generated more than £100,000 in expert fees, with competing expert evidence ranging by many millions of pounds. I have one memorable case involving a four-year marriage to a senior executive at a FTSE 100 company where we spent six months arguing about the appropriate discount rate to apply to unvested options and whether certain performance conditions would be likely to be met/unmet by the option holder. The emotional toll on my client, a woman who simply wanted to move on with her life, was huge.
The Emotional Intensity: Why Short Divorces Burn So Hot
One might expect that short marriages would give rise to less emotional intensity than longer ones. After all, the parties have less shared history, fewer intertwined relationships and, in my experience, often no children to co-parent. In practice, it is almost the exact opposite. Short marriage divorces are among the most bitter and combative that I see.
There are several reasons for this:
The Sense of Betrayal: In a longer marriage, there is often a long drift apart, a slow accumulation of incompatibilities and resentments, and often some last-chance rescues. The divorce at the end of a long marriage can be sad, but the parties have often shared so much of their lives together that it is easier to reconcile this with a lifetime of shared experiences. Short marriages, by contrast, often end quite abruptly. One or both parties feel shocked. The person they believed they knew better than anyone in the world has shown their true face to be quite different from the person the party married. The sense of having been deceived, of having made the worst mistake of one’s life, is searing. The emotions on both sides are raw and powerful.
The Financial Stakes: Short marriages which end up in contentious litigation are almost by definition high-value cases. The parties are fighting over large sums of money, often life-changing amounts of wealth. No one likes to transfer millions of pounds to someone they have known for less time than it takes to complete a university degree course. When large sums of money are in play, emotional responses are often visceral.
The “Gold Digger” Narrative: In cases where one party brought significant wealth into a short marriage, there often lurks in the background (or at the forefront) an accusation (often implicit) that the other party married them for their money and is now seeking to extort a substantial windfall upon divorce. Whether or not that accusation is true, it contaminates the atmosphere, making settlement negotiations deeply fraught. I have sat in mediation sessions where the parties could not even agree on basic facts about their relationship because each had a completely different constructed narrative about the other’s motivations.
The Absence of Shared History: Paradoxically, the lack of history can intensify conflict. In longer marriages, the parties will often have decades of shared positive memories: children raised, holidays taken, challenges overcome together. These memories can provide a perspective on the marriage that softens the conflict. In a short marriage, there may be little more than a brief honeymoon period before the relationship starts to sour. The entire relationship is then defined by its failure.
Social Embarrassment: There is a particular shame around a failed short marriage. Friends and family members who attended the wedding only recently will often be present at the divorce. The parties may also feel they have to justify their decision to marry in the first place, leading to blame-shifting and character assassination.
The Speed of Escalation: Short marriages can often deteriorate very quickly. One day the parties are planning their lives together; weeks later they are separated and hiring solicitors. This compressed timeline means that the emotions have not had time to settle. The parties are making huge legal and financial decisions in the rawest stages of grief and anger.
I recall a case involving a three-year marriage between two professionals in their thirties. The husband had received a substantial inheritance during the course of the marriage. When the wife’s solicitor made an early-stage investigation into whether this might be considered to be a family asset to which the wife was entitled to a share, the response from the husband was so vitriolic that settlement negotiations were effectively derailed for over a year. He simply could not accept that someone he now considered to have “conned” him into marriage might be entitled to any of his family’s wealth. The case ultimately settled at the courthouse steps for an amount the husband could have paid eighteen months earlier, but only after both parties had collectively spent over £200,000 in legal fees and suffered immeasurable emotional distress.
Needs-Based Awards: Generosity and Its Limits
If the sharing principle has limited application because the marriage has been short, then the needs of the applicant are at the forefront of the court’s consideration. In short marriages it’s important to understand that the court will want to meet those needs “generously” but within limits and it’s not always easy to predict in advance where the limits will be. This is where the knowledge of experienced divorce solicitors becomes crucial – experienced legal representation for divorce can make an enormous difference in how “needs” are defined and quantified.
The calculation of needs is not a wholly objective process. The court has regard to the standard of living which the parties enjoyed in the marriage, but in the case of short marriages it leads to a logical conundrum. If somebody has enjoyed a certain lifestyle during the marriage, should they be entitled to continue to enjoy that lifestyle indefinitely on divorce?
The case law is clear that the answer to that question is “no”, with a large number of important qualifications.
In Sharp v Sharp [2016] EWCA Civ 396, the Court of Appeal approved a needs-based award of £2 million to the wife after a four-year marriage, despite the wife’s pre-marital income having been relatively low. The court accepted that the wife had become accustomed to a high standard of living and that her needs should be assessed generously but not so generously as to amount to a sharing award by the back door.
The notion of “generous needs” has been the central issue in short marriage cases in recent years. Broadly, the court will:
1. Assess the applicant’s reasonable housing needs. This will be influenced by the standard of accommodation enjoyed in the marriage, but will not necessarily be a matching requirement;
2. Make a capital award sufficient to provide income to meet on-going living expenses. This will be assessed in the same way, with a standard of living reference point but with an acceptance that it may need to be discounted;
3. Consider whether the applicant requires a period of transition to retrain or re-establish a career that may have been placed on hold or disrupted by the marriage; and
4. In some cases, make a “clean break” award of capital sufficient to allow both parties to walk away.
The problem for the parties is that “generous needs” is an inherently flexible concept. I have seen cases in which the applicant’s solicitor presents evidence to the effect that their client’s needs-based award should be £5 million (£3 million for housing, £2 million to generate income), whilst the respondent’s solicitor is arguing that £1 million would be more than sufficient. Both sides can often justify their approach by reference to case law and to expert evidence on reasonable living costs.
I acted for a client in one case in which we instructed a forensic accountant to provide a detailed breakdown of our client’s reasonable needs in terms of housing costs, living expenses and provision for retirement. The other side instructed their own accountant who came to a figure less than half of our estimate. We settled at a figure somewhere in the middle, but the process took over a year and cost both sides a small fortune.
Child-Free Special Considerations
Many short marriages are child-free, by choice or by circumstance. It’s a factor which has huge consequences for the financial settlement.
The presence of children in the marriage will inevitably extend and magnify the needs-based claims of the applicant. The parent with primary care of the children will need larger housing, have continuing childcare costs and may have reduced earning capacity due to childcare responsibilities. Those needs can be ongoing for many years, potentially justifying substantial capital provision in a short marriage.
Child-free short marriages are, by contrast, often characterised by the court’s expectation that both parties will return to financial independence relatively quickly. There’s no childcare to be paid for, no need to be near schools, and typically no long-term reduction in earning capacity.
The impact for applicants in child-free short marriages can be harsh. Unless there is a demonstration of substantial needs or significant matrimonial assets then the award may be very modest indeed. I’ve seen clients come to court expecting multi-million pound awards walk away with a few hundred thousand pounds – enough to buy a modest property and have some short-term income, but a long way short of the transformative outcome they may have been expecting.
Emotionally, the lack of children also has an impact. Where there are no children to co-parent, the parties can often achieve a completely clean break from one another. There is no need for on-going contact, no school gates to navigate, no shared grandchildren in the future. This can be liberating, but also means that there is no external incentive to civil behaviour.
Prenuptial Agreements: The Elephant in the Room
It would be remiss of me not to mention the elephant in the room when discussing short marriage finances: prenuptial agreements.
The leading case on prenuptial agreements is Radmacher v Granatino [2010] UKSC 42 which established that such agreements, whilst not strictly binding in English law, should be given decisive weight provided certain conditions are met.
The conditions include that:
1. The parties entered the agreement freely without pressure or duress;
2. The parties had a full appreciation of the implications of the agreement, ideally with independent legal advice; and
3. It would not be unfair to hold the parties to the agreement in the circumstances prevailing at the time of divorce.
In the context of short marriages prenuptial agreements can be very powerful. The court is much more likely to uphold an agreement that limits claims in a marriage that lasted only a few years than in a long marriage where the circumstances and expectations of the parties have changed.
I’ve been involved in a number of cases where a properly drafted prenuptial agreement effectively put an end to the financial dispute before it even began. One client was advised that, having signed a prenup limiting her to a £500,000 payment if the marriage ended in divorce within the first five years, the best outcome she could hope for was that amount. She had wanted to challenge the agreement, but an analysis of the case law and the circumstances in which it was signed (she had had independent legal advice, there was no pressure and she had had several weeks to consider the agreement before signing it) showed that a challenge was unlikely to succeed. She accepted the £500,000 and moved on, avoiding an expensive and uncertain litigation.
Conversely, I’ve also come across prenuptial agreements which have been too poorly drafted or procedurally flawed to be effective. One case involved a husband who had presented his fiancée with a prenup two days before their wedding, when they were both at the destination wedding venue with guests arriving and waiting. She signed it, but when the marriage broke down four years later, the agreement was given minimal weight by the court, largely due to the pressure of the circumstances and lack of time for proper consideration and advice.
For anyone marrying with substantial assets, particularly if marrying later in life or for a second time, a prenuptial agreement is a no-brainer. The cost of having specialist family lawyers prepare an agreement (a relatively modest £5,000-£15,000 per party) is tiny compared to the potential cost of a contested divorce.
The Litigation Process: Costs and Timelines
Short marriage divorces that do result in contested financial remedy proceedings are very expensive and time consuming. The best way to explain this to clients is that both the costs and the timescales will be deeply shocking to them.
A fully contested financial remedy case that goes to final hearing will cost each party between £75,000 and £250,000 in legal fees depending on the complexity of the assets and level of conflict, and high value cases with complex business valuations, offshore assets or trust structures can reach £500,000 or more per party in legal costs very easily.
The time from initial separation to final hearing is typically 12-18 months but can be much longer in complex cases. During this period both parties are in limbo unable to move forward with their lives, unable to make long term plans, and bleeding money on legal fees.
The process will typically have the following structure:
1. Initial disclosure. Both parties are required to provide full and frank disclosure of their financial circumstances, which includes bank statements, property valuations, business accounts, pension statements and details of all assets and liabilities
2. First Appointment. A court hearing where the judge reviews the disclosure, picks holes and requests further information on anything that is not fully understood or disputed.
3. Financial Dispute Resolution (FDR) hearing. A without prejudice hearing where the judge will give an indication as to the likely outcome if the case were to proceed to final hearing. This is a clear attempt by the judge to encourage the parties to settle the case based on an assessment of the merits of the case (see further below).
4. Final hearing. If the case is not settled, a final hearing where both parties put evidence and make submissions, after which the judge makes a binding determination.
Throughout this process there are natural opportunities for settlement through negotiation or mediation. In my experience, around 90% of cases settle before final hearing, but not infrequently after significant costs have been incurred.
Both the costs and the timescales are shocking to clients. The process forces people to provide intimate and exhaustive details of their financial lives, be cross examined about their spending decisions and lifestyle choices, and watch their former partner’s legal team seek to diminish their contributions and maximise their faults. For people who began their marriages with optimism and love, the inherently adversarial nature of contested proceedings is deeply traumatic.
Strategic Considerations: When to Fight and When to Settle
One of the most important things I do as a divorce solicitor is help my clients make strategic decisions about when to fight and when to settle. This issue is particularly important in short marriage cases where the legal principles may limit the potential award.
There are several factors that go into this decision:
1. The strength of the legal case. If the marriage was very short (less than two years), there are no children and the applicant brought minimal assets to the marriage, the legal case for a substantial award is going to be weak. Fighting such a case may feel emotionally satisfying but can be financially ruinous
2. The cost-benefit analysis. If the difference between the offer on the table and the likely outcome at trial is £200,000 but getting to trial will cost £150,000 in additional legal fees, settlement is normally the rational choice. This is easier said than done, of course, because divorce is rarely rational.
3. The disclosure position. If the other side has been evasive or dishonest in disclosure, there may be a reason to fight to uncover hidden assets. If disclosure is complete and the assets are all very straightforward, there is less to gain from a protracted litigation process.
4. The emotional cost. Some clients simply reach a point where they want to move on with their lives and make peace at any price. Others are so angry that they are willing to spend £100,000 to prevent their former partner receiving £50,000. Neither position is right or wrong – just different.
5. The precedent value. In rare cases, particularly those involving novel legal issues or substantial wealth, there may be value in obtaining a court judgment that establishes a precedent. The reality is, however, that this is a luxury only the very wealthy can afford.
I always encourage clients to attend mediation before commencing contested proceedings. A skilled mediator can often help parties reach a settlement that they can both live with at a fraction of the cost of litigation. In short marriage cases where the legal principles may limit the potential award, mediation is particularly valuable because it allows the parties to reach creative solutions that a court would not order.
For example, in one case I mediated, the parties agreed that the wife would receive a lower capital sum than she would have obtained at trial but the husband would also pay for her to complete a professional qualification that would increase her earning capacity. This met her longer term needs in a way that a pure capital award would not have and it cost the husband less than it would have to continue to trial.
Conclusion: Navigating the Complexity
Short marriages that generate substantial wealth or involve complex asset structures present unique challenges in divorce proceedings. The legal principles that govern these cases – particularly the limited application of the sharing principle and the focus on needs-based awards – can produce outcomes that surprise and disappoint parties who expected equal division of assets.
My two decades of practice in this area have taught me several key lessons:
1. Duration matters profoundly. Every month of marriage can potentially affect the financial outcome. The difference between a 2.5 year marriage and a 3.5 year marriage can be hundreds of thousands of pounds in settlement value.
2. Documentation is crucial. Parties who can clearly establish what assets they brought to the marriage, and how assets were generated during the marriage are in a far stronger position than those who cannot.
3. Business valuation is complex. When substantial wealth has been generated through business growth or equity compensation during a short marriage, expect expensive expert evidence and substantial disagreement about valuation and characterisation.
4. Emotions run high. Don’t underestimate the emotional intensity of short marriage divorces. The sense of betrayal and the financial stakes combine to create an explosive mixture.
5. Prenuptial agreements work. For those entering marriage with substantial assets, a properly drafted prenuptial agreement provides certainty and can avoid expensive litigation.
6. Settlement is usually preferable to trial. The costs and emotional toll of contested proceedings are substantial. Most cases that settle on the courthouse steps could have settled a year earlier for a similar amount, saving both parties enormous costs and distress.
7. Legal advice matters. The difference between experienced, strategic legal representation and inexperienced or overly aggressive representation can be measured in hundreds of thousands of pounds and months or years of unnecessary conflict.
For those facing the end of a short but financially significant marriage, my advice would be to seek specialist legal advice early, maintain perspective on what’s truly important, and be realistic about the likely legal outcome. The law in this area is now relatively well-established and, although every case turns on its specific facts, experienced practitioners can usually predict the likely range of outcomes with reasonable accuracy.
One final point on needs based awards is the possibility of assistance for those on low income or with limited means via family solicitors legal aid (note, this is a very restricted form of legal aid and depends on very strict eligibility criteria).
The end of a marriage is always painful, regardless of how long it lasts. But with clear-headed legal advice, realistic expectations and a willingness to compromise where appropriate, it’s possible to navigate even the most complex short marriage divorce and emerge ready to build a new future.
The new generation partnerships that are increasingly characteristic of short marriages where careers develop at warp speed, wealth can accumulate quickly and life moves at breakneck pace, may not last, but their legal and emotional consequences can reverberate for years. Understanding the particular legal landscape governing those unions is the first step towards achieving a fair resolution and moving on.
