Property settlement after a short marriage

Date: Oct 01, 2015
Document Type: Article

As we know, couples can separate at any stage of their marriage. Some marriages last only a few years or even months. How will family law principles regarding property settlement apply to such marriages? Will short marriages be any different from longer marriages?

"Short marriage" is an expression often used in family law context for marriages that have lasted for less than about five years. Like with all other family law matters, the Court determines what property settlement will be just and equitable after a short marriage based on the specific facts of a particular case. Pursuant to applicable legal principles, the Court will consider the parties’ respective contributions to the acquisition, preservation and maintenance of such assets during the marriage and the parties’ ability to meet their respective future needs following separation. However, it is to the discretion of the Court how much weight it will place on those considerations in various scenarios.

Naturally, the Court’s approach to assessing the parties’ respective contributions may be different for marriages of different duration. The well-established principle that domestic activities of one spouse may of themselves be considered equal to the income-earning activities of the other spouse usually applies to couples that have been in a reasonably long relationship (of 10 or more years). In short marriages, the Court tends to examine more closely specific financial contributions of each party, albeit not always with mathematical precision in calculations. By the same token, the assets each party had at the commencement of cohabitation – what is often called ‘initial contributions’ - will be of more significance in short than in longer marriages.

In line with such an approach, the Court would often determine that the parties to a short marriage should take out of the property pool existing at separation what they contributed to it financially, without placing any weight to non-financial contributions of the parties or their respective future needs and the ability to meet those needs.

However, in some short marriages, one party’s domestic contributions may still be recognised on par with the other party’s earning activities – for example, where home duties were especially onerous due to the other party’s disability or where one party had the primary care of the parties’ children. Also, if following separation one of the parties remains the primary carer of the parties’ children, that party is likely to receive additional adjustment on his/her entitlements to the share of the matrimonial assets, regardless of the short duration of the marriage.

Other facts that the Court may consider when determining property settlement in short marriages will be whether during the marriage the parties pooled their assets together or treated them as separate and conducted their financial affairs separately.

Each property settlement matter, including the ones that involve short marriages, will turn on its facts and there is no formula the Court will use to determine such settlement. It is advisable to discuss all the details of your matter with a family lawyer, to receive a comprehensive advice as to the possible outcomes of your settlement, whether in long or short marriages.

The same principles discussed in this article will be applicable to a de-facto relationship of short duration.

It is to be noted that the law discussed in this article was current as at the date the article was written, in September 2015.

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