TIME IS MONEY: MARRIAGE DURATION AND DIVORCE SETTLEMENTS
Published on 20 October, 2022 | Madelaine Hailey
In recent decades, the nature of British family life has undergone substantial change.
According to the Office for National Statistics (ONS), the number of individuals living together without marrying has increased by almost a quarter within the last decade alone (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2021).
At the same time, the ONS has also reported a substantial reduction in marriages – down almost 50 per cent in less than half a century
Further figures from the ONS show that, on average, men and women who divorced in 2020 had been together for just under 12 years
The length of time that couples are married is important because it’s a factor in determining the way in which assets are divided.
Its importance has also been reiterated by a family court judgement handed down in the last week featuring the editor of the Palestinian newspaper Al-Quds, Walid Abu-Zalaf, and his estranged wife, Angela Jilina (https://www.bailii.org/ew/cases/EWFC/HCJ/2022/119.html).
They married in June 2012 – 11 years after starting a relationship – but divorced in August 2013 amid allegations of physical and verbal abuse by him.
Despite a decree nisi being issued that November and the terms of their financial separation being settled the following summer according to the terms of their pre-nuptial agreement, the divorce process has still not been finalised.
It was only Ms Jilina’s attempt to set aside the original decree nisi and begin the divorce afresh which brought the matter to a head.
She claimed that the couple had reconciled after their 2013 separation and that their marriage had only really broken down in March 2020.
Mr Abu-Zalaf disagreed, suggesting that whilst there was indeed “a relationship of sorts”, it did not amount to a continuation of their marriage.
Instead, he sought to finally obtain the decree absolute which had not been pursued after their original relationship collapsed.
The judge presiding over a three-day family court hearing at the start of this month decided that reason for the discrepancy and the motive for Ms Jilina’s new application was simple.
It was, said Mr Justice Mostyn, not to “proclaim to the world” that she and Mr Abu-Zalaf had remained husband and wife for a further seven years – during which time they attended the marriage of former Prime Minister Tony Blair’s daughter together.
In fact, he concluded: “It is about money, and only about money”.
The financial settlement which was agreed in 2014 was based on terms within a prenup which they had signed that made express provision for a marriage “under two years” in duration.
Had Ms Jilina succeeded with her argument that the marriage had lasted eight years, she would have been entitled to a significantly greater award.
Mr Justice Mostyn calculated that the increased amounts would include an extra £1.7 million in housing capital and an additional £13,500 in annual spousal maintenance on top of the sums already agreed.
However, he dismissed Ms Jilina’s application and ruled in favour of Mr Abu-Zalaf. “The decree”, he said, “will be made absolute forthwith, and the financial order will, at last, take full effect“.
Although the details of the dispute and the wealth involved may not be typical, it arguably is of relevance to far more people than this particular couple.
Whilst the length of a marriage is not regarded as a standard part of discussions about a pre-nuptial agreement, it is a fairly regular provision within such documents.
That is because, as I’ve already said, the duration of a marriage is one of the statutory factors which courts must take into account when weighing up how finances are split on divorce.
Courts do not only consider the length of a formal relationship for the purposes of calculating asset division from the point at which vows are exchanged but from when they begin living together.
Many cohabitees – especially those concerned about how to look after partners in the case of one of them passing away – decide to formalise their relationships through marriage or by entering into a civil partnership.
If their relationships break down, discussions about a fair division of assets will consider the date on which they became moved in together and that could be considerably larger than if only the length of the marriage was taken into account.
I should point out that although it is one element which must be considered, the length of a marriage or civil partnership does not dictate the size of any award which the court can make.
Without a prenup, such financial negotiations can be fraught, even in relationships which might be happier than the “disastrous, toxic and unhealthy” marriage between Mr Abu-Zalaf and Ms Jilina.
Those tensions can – perhaps understandably – compound the natural distress associated with marital collapse.
If someone feels that the length of a relationship should have a bearing on the kind of settlement which their civil partner or spouse should receive in the event of a break-up – as Mr Abu-Zalaf did – then having a prenup in place is by far the best way to determine that.
Although, 12 years on from an historic Supreme Court ruling
(https://www.supremecourt.uk/cases/docs/uksc-2009-0031-judgment.pdf), pre-nuptial agreements still do not have full legal weight, they are regarded as a highly persuasive factor in the financial part of any divorce.
As such, they have distinct merits for couples regardless of the scale of their wealth.