Pupil barrister Hannah Jarvis explores how the courts approach financial needs in short marriages, focusing on when non-matrimonial assets may be brought into play.
Distribution of Assets
The objective of the court in financial remedy proceedings is to achieve an outcome which “ought to be as fair as possible in all the circumstances” (White v White [2000] 2 FLR 981, per Lord Nicholls). When evaluating fairness, the court is also required to have regard to the Matrimonial Causes Act 1973 and the criteria set out at section 25.
In determining the distribution of assets between the parties, three fundamental principles apply:
- Needs.
- Sharing; and
- Compensation.
Under the sharing principle, the parties are ordinarily entitled to an equal division of the marital assets and non-marital assets can be invaded on a needs analysis (Scatliffe v Scatliffe [2017] 2 FLR, 993, [25]).
The sharing principle for assets constituting the ‘fruits of the matrimonial partnership’ applies to short marriages just as it does to longer marriages. As set out in the case law, a short marriage is no less a partnership of equals than a long marriage (Miller v Miller; McFarlane v Mc Farlane [ 2006] UKHL 24, [17].) The difference is that a short marriage has been less enduring, and therefore this will affect the quantum of any matrimonial assets.
However, when the Court is faced with a case wherein most of the assets are non-matrimonial and the marriage was short, how does the court determine if and/ or how the assets should be distributed to meet need?
What are non-matrimonial assets?
The definition of non-matrimonial property was clarified in Charman v Charman (No 4) [2007] EWCA Civ 503, [66]:
‘Property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property. According to this view, on a breakdown of the marriage these two classes of property should not necessarily be treated in the same way. Property acquired before the marriage and inherited property acquired during marriage come from a source wholly external to the marriage.’
Usually, non-matrimonial assets fall into 1 or more of 3 categories:
- Property brought into the marriage by one or other party.
- Property generated by one or other party after separation.
- Inheritances or gifts received by one or other party.
Defining a ‘short’ marriage
There is no statutory definition or authoritative case law decision as to what counts as ‘short’ for the purposes of defining a short marriage, but a tentative suggestion for a rule of thumb might be anything less than four years (Financial Remedies Handbook, July 2025, p44).
How does the court determine if and/or how non-matrimonial assets should be distributed to meet need in short marriages?
Following the recent Supreme Court judgement in Standish v Standish [2025] UKSC 26 non-matrimonial property is generally not subject to the sharing principle in divorce. This remains the case irrespective of the duration of the marriage.
However, non-matrimonial assets can be invaded to meet needs and in practice needs will usually be the only justification for a spouse pursuing a claim against non-marital assets (WC v HC (Financial Remedies Agreements) [2022] EWFC 22 [21x].)
This means that if non-matrimonial assets must be invaded to meet the needs of a party, the court must undertake a careful assessment of what those needs are.
The assessment of needs can be complex as there are several factors the court must consider. The factors for consideration were set out in Charman as follows:
- The financial needs, obligations and responsibilities of the parties (s.25(2)(b);
- The standard of living enjoyed by the family before the breakdown of the marriage (s.25(2)(c);
- The age of each party (s.25(2)(d); and
- Any physical or mental disability of either of them (s.25(2)(e)).
Each case is fact specific however Peel J made clear in WC v HC (Financial Remedies Agreement) [2022] EWFC 22 that both the duration of the marriage and the ages of the parties have a ‘significant impact upon the assessment of need.’
This approach was supported by Mostyn J’s earlier ruling that ‘it is defensible to hold that parties who share their lives together earn a share in one another’s assets relative to the length of time they have shared their lives together.’(GW v RW (Financial Provision: Departure from Equality) [2003] EWHC 611 Fam), [2003] 2 FLR.)
Mostyn J continued to state that ‘the main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise.’
In Miller; McFarlane [2006] UKHL 24 at [57-58] Lord Nicholls addressed how the standard of living enjoyed by the parties should be factored into the assessment of need. In Miller, the Marriage had been short (2 years and 9 months) but lavish. Lord Nicholls noted that:
‘The standard of living enjoyed by the Millers during their marriage was much higher than the wife’s accustomed standard and much higher than the standard she herself could afford…No doubt both parties had high hopes for their future when they married. But hopes and expectations, as such, are not an appropriate basis on which to assess financial needs.’
This approach shows that when assessing need the court has a wide discretion and will consider all the circumstances of the case to include the duration of the marriage and the standard of living enjoyed by the parties during the marriage. However, the standard of living enjoyed during the marriage is not a determinative factor particularly where any such standard has been enjoyed for a short period of time.
Wilson LJ stated that there was ‘no reported case in which the applicant had secured an award against non-matrimonial assets in excess of their needs’ (K v L [2011] 2 FLR 980.[22]) and therefore any assessment of need must be carried out carefully.
What does this mean for parties to short marriages?
As to the distribution of non-matrimonial assets to meet need, the court has been clear that a claim to share non-matrimonial property would have no moral or principled foundation and such a case would be as rare as a ‘white leopard.’(JL v SL (No.2) (Appeal: Non-Matrimonial Property) [2015] EWHC 360 (Fam), [2015] 2 FLR 1202 [22].)
Whilst each case is fact specific, the jurisprudence is clear that from an income standpoint, the existence of a short marriage will lean the courts towards awarding short term, rehabilitative maintenance (C v C [1997] 2 FLR 26.) If the facts of the case are such that a periodical payments order is to be made, then the court must decide what amount is to be ordered.
Ward J stated in C v C [1997] that ‘the duration of the marriage is a relevant factor to the determination of quantum’. The statutory test is:
‘Is it appropriate to order periodical payments only for such a term as in the opinion of the court would be sufficient to enable the payee to adjust without undue hardship to the termination of financial dependence on the paying party?’
What is appropriate, must depend on all the circumstances of the case including the welfare of any minor child and the s.25 checklist factors, one of which is the duration of the marriage.
As to the division of capital in a short marriage, the duration of the marriage will influence the outcome by causing needs to be assessed in a less generous way. (X v C [2022] EWFC 79).
In McCartney v Mills McCartney [2008] EWHC 401, (Fam), [2008] 1 FLR 1508; AG v VD [2021] EWFC 9, Bennett J at [240] endorsed the approach that in a short marriage case, ‘it is legitimate to look at the claimant’s needs more conservatively than in a long marriage, because the standard of living which has a bearing on the assessment of need will have been enjoyed for a shorter period.’
This case concerned a marriage lasting just under four years, and Bennett J made it clear that after a short marriage to a wealthy individual, it would be ‘unrealistic’ for the other party to expect to continue to experience the same standard of living as that enjoyed during the marriage. This indicates that an award is likely to only be restricted to needs.
Conclusion
The courts have a wide discretion as to the distribution of non-matrimonial assets to meet need.
Any assessment of need must consider the circumstances of the case and the factors contained in section 25 of the Matrimonial Causes Act 1973, to include the duration of the marriage.
The duration of the marriage will likely impact the assessment of need and subsequent distribution exercise. Whilst the aim of financial remedy proceedings is to achieve an outcome which ‘ought to be as fair as possible’, ultimately any benefit derived from non-matrimonial assets during a short marriage, has been enjoyed for a short period of time and parties cannot expect to enjoy such benefit for an indefinite period of time post-separation.
Unlike the sharing principle that applies to matrimonial assets, when non-matrimonial assets are to be invaded to meet need, parity for the parties is less certain.
Hannah is undertaking a specialist Family pupillage under the supervision of William Horwood and will be available to accept instructions from 1 April 2026.
To instruct Hannah or for any other enquiries, please contact the clerks at Family@st-philips.com
This article reflects the law as of the date it was published. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
