His judgment quashes the idea, first raised in Miller v Miller [2006] UKHL 24, that childlessness should be a factor for the court to take into account when ordering a fair division. The absence of children will not justify a departure from equal sharing of marital acquest. Nor should the short duration of a marriage be a reason to disapply the sharing principle in circumstances where one party is the breadwinner and the other is the homemaker.
The parties began a relationship in December 2015 and married in June 2017. They finally separated in late 2019. The husband, who was in his early 60s when they married, was in the latter stages of a long and very successful career as a production manager for live music events. His income was generated through various companies in which he had an interest. The companies were established long before the parties married and had continued to flourish throughout their relationship. The wife, who was in her late 50s, had not earned any income since 2012 and was a housewife.
The husband argued that, because the marriage was short and childless, the wife should not share equally in the marital acquest. The award she received should be confined to her needs, conservatively assessed. He argued that sharing the marital acquest was unjustified in circumstances where the foundation and continuation of his businesses had nothing to do with the parties’ joint endeavours. The concept of equal sharing, he said, would not necessarily lead to a fair outcome when applied to a short childless marriage. When pushed by Mostyn J as to why childlessness made a difference, H’s counsel suggested that ‘having children changes everything’ and denoted ‘a completely different category of commitment’.
Mostyn J took strong exception to the idea that having children suggested a greater degree of commitment within a marriage. He referred back to his decision in NB v MI [2021] EWHC 224 (Fam), in which he pointed out that the idea that marriage is principally a vehicle for having children was discredited long ago. While having children is relevant to a needs claim, childlessness does not affect the application of the sharing principle: ‘For the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls, and should be avoided at all costs’ [29].
Turning to the length of the marriage, Mostyn J was not persuaded that a short marriage could justify a departure from the sharing principle in a situation where one party is earning and the other party is the homemaker. In his judgment there is ‘no logical reason to draw a distinction between an accrual over a short period and an accrual over a long period… the statutory factor of the duration of the marriage will be reflected in the nature of things by the fact that in a short marriage the accrual will almost inevitably be less than in a longer marriage’ [43]. To make an exception on the basis of a short marriage would risk the sort of discrimination that the sharing principle was intended to combat.
Quoting Lord Mance in Miller, Mostyn J agreed that, where a transaction is already underway at the beginning (or the end) of a marriage, part of that asset can legitimately be excluded from the marital acquest, on the basis that it represents the fruits of a pre- or post-relationship project. This would be a legitimate position in a short marriage, but it does not amount to a departure from the equal sharing principle, since the marital assets are being reduced rather than divided unequally. In Mostyn J’s view, ‘a case where there can be a legitimate non-discriminatory unequal sharing of matrimonial property earned in a short marriage will be as rare as a white leopard’ [45].
Hannah Wise
Solicitor, Katz Partners