Short Marriages

It may be the society that I keep, but one of the wearisome

aspects of being a family specialist is being called upon, when off

duty, to justify the present state of the law relating to ancillary

relief (not that they ever call it that), and it is the size of

awards following a short marriage that is more often than not the

topic of choice of the testy (usually male) dinner party companion.

This article attempts to do that.

As we know the duration of the marriage is one of the s.25

criteria in the 1973 legislation, specifically S.25 (d) where it is

grouped with the ages of each of the parties to the marriage. For

nearly thirty years I would have given much the same explanation as

to the Courts approach to a short marriage. Since 2001 however,

that explanation would have had to have changed repeatedly, and

only now, with Miller1 and

McCartney2 do we seem to have arrived at a

settled position again.

The pre-White3 approach was demonstrated by

Ormrod LJ in S v S4 involving a two year

marriage of parties in their fifties both of whom had been married

before. The wife was the weaker financially, and the approach taken

was to consider the effect of the marriage particularly on her. On

the facts of that case, Ormrod LJ rejected the hypothetical task of

fully restoring her to the position she had had before the

marriage, but this was thrust of his award; it was the needs that

she was no longer able to meet as a consequence of the marriage

that were its main focus, and it was a return to the standard of

pre-marital housing that he attempted to achieve.

In H v H5 the parties were younger, the

financial impact of the marriage on either insignificant

? no children were involved, and their employment

prospects unaffected by it. Balcombe LJ stated that the Court's

approach in such a case should be:

..to allow for a short period of periodical payments

to allow the party...in the weaker financial position... to adjust

to the situation, and thereafter to achieve the wholly desirable

result of a clean break

The legislative amendments of 1984 reinforced this approach.

They removed the direction to replicate the standard of living in

the marriage (not that this had ever detained the Court for long in

these cases) and introduced S.25A to encourage the clean break

wherever possible.

In Attar v Attar (No 2)6 the facts were much

closer to H v H although it was S v S that Booth

J mainly cited. The parties, again both young, had met and married

as employees of Saudi Arabian airlines for whom the wife worked as

a stewardess, which paid her £15,000 pa but which she left by

agreement. The marriage lasted six months, containing only seven

weeks cohabitation, and there were no children. The husband was

extremely wealthy by the standard of the times while the wife was

unemployed had limited capital and no home. Again the Court's

approach was retrospective: the wife received a lump sum equating

to two years pre-marital salary to enable her to

"..rehabilitate herself as best she can...and to find a

place in society for herself". There was no specific

allowance to meet her housing need as such.

Hedges v Hedges7 involved a 4½-year

childless marriage of a couple in their 40's. The Court sought

only to restore the wife's "frugal"

pre-marital income position by a periodical payments order for a

term of 18 months only, and contained no element allowing her a

mortgage and house of her own

C v C8 involved another very short marriage

(9½ months) but there was an asthmatic child to show for it.

Ward LJ approved the extract from Balcombe LJ's judgment given

in H v H (quoted above), but both H v H and

Attar were distinguished on account of the child and the

resulting "profound and continuing consequences"

on the mother's earning capacity and he left undisturbed a

significant lump sum for housing and whole of life periodical

payments (for which the judgment is better known).

Accordingly, until 2001 the Court's approach was

retrospective and rehabilitative, the standard of living of the

claimant prior to the marriage being the principal guide. An older

wife with less time or earning capacity might expect to have that

standard restored (if finances allowed); a younger wife, with a

continuing capacity to fend for herself, might expect a limited

period of assistance before being expected to do so.

The House of Lord's judgment in White in 2001 and

those that succeeded it brought about a wholly different approach

to claims for ancillary relief, and this has had its effect on

short marriage cases too; indeed the pot was so well churned that

the jurisprudence can only be said to have begun to settle down

over the past couple of years. In the new era of entitlement, what

was to be the effect of a yardstick of equality, or the equating of

home and money making, on a short marriage?

John Eekelaar considered these issues in his article

"Asset distribution on divorce ? the durational

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