Who gets what after a simple short marriage?

 

James Pirrie a director at Family Law in Partnership discusses whether there is an easy way to decide who gets what in financial terms after a short marriage. 

Marriages are never simple and their ending is never, ever simple.  But is there an easy way to decide who gets what of the finances particularly when the marriage has been a short one?

We have this conversation pretty often, either with clients who are separating after a short and childless marriage OR with clients who are thinking about whether or not to have a pre-nuptial agreement before an upcoming marriage.

However, the situation that should be the easiest to sort out is often, weirdly, one of the hardest.  This is because of the rules that family lawyers are required to apply which don’t really always provide easy answers in this case.

Generally in financial remedy proceedings (cases which involve sorting out the financial arrangements) after a marriage, the court is given a discretion

• to reallocate resources (property, savings etc),
• to give slices of pensions to an applicant; and
• to award them maintenance.

The court is generally doing only two things when it reaches its conclusion as to the right way forward, namely applying the principles of “sharing” and “needs”.

1. “Sharing” the court almost always ignores who did what during the marriage (which is why very long marriages often don’t complicate things very much, as alluded to above – this is because each side is assumed to have contributed equally).

This would work well if the parties started with nothing and have now built up £10m … £5m each! but if the marriage is short then very often the marriage will not have built up much.

2. The other principle, “needs”: the court allocates resources so as to give each party an equal start on the road to independent living. (Not a start on the road to equal living).  This principle isn’t so easy to apply either. Needs looks forward so it isn’t just about plonking someone back in the position they were before they got married.  But on the other hand, clearly you don’t become entitled to support for the rest of your life, just because you stayed together for eighteen months after a marriage ceremony.  So, for what period should the court try to see you supported?

My five step plan would probably include these:

1. Recognise that yours is not the only solution:  yes your idea of [decent] [minimal] – depending from which direction you are coming at the problem – provision may sound compelling.  But hold in mind that your ex probably has an equal and opposite one that is just as compelling for them.

The answer is not going to come from just turning up the volume on what you are saying, however frightening this issue and the future seems to be and however hurt you are from the end of the relationship.

2. Share that thought with your ex  – you may not be right but then your ex needs to recognise that they may not be right either.  You are two people who had hopes for a future together that have not worked out and are stuck in a horrid situation where there are no easy answers.

But you can both benefit by getting it sorted out.

3. Aim for transparency.  Trust will be at a low ebb right now.  But if you can try to be a bit open about what is going on and what you are doing, you may start to put your communications into a safer place.  If you can sugar your communications with kindness too you may get there faster.

But whilst doing this remember that you are each likely to be in a place of turmoil.  There will be good days and bad days – when you get bad stuff incoming, this may need to be put down as “a bad day for the ex” rather than treated as a declaration of irreversible hostilities.  Hopefully they will give leeway for your bad days too.  What is absolutely certain is that if you fall out over this and need court intervention you are pretty likely to be spending several times the difference between you (or even as much as the settlement sum – who knows).

4.  Get some guidance … and do so pretty quickly if you can.  We may start out a bit soft and pliable in our hopes and needs in the early period but we are likely to fix our positions quite quickly once arguments fly back and forward.

5. And remember that those two lawyers you each appoint may be way apart too … and so the next and most important step may well be to be supportive of those lawyers getting into dialogue and having conversations where you put your cards on the table and early progress is made towards the good enough outcome all round.  We have lots of options: mediation, early neutral evaluation, private judging all of which can help to find a way forward for you.

The good outcome for these situations is often about process and pacing: get into the right process at the right time and you are likely to generate the right answer for taking your discussions forward, unless …

… Unless you had a pre-nup.  That may have avoided all sorts of difficult discussions and upset.