I read with interest, in the matter of E v L  EWFC 60 (13 July 2021) Mr Justice Mostyn’s rejection of an argument that where a marriage was defined as ‘short and childless’ this denoted some partial devotion to the marriage, as ‘incredible’. Surely, having children is not indicative of any more of a pledge to your spouse/civil partner? Mostyn thought not.
I will briefly summarise the points in this case dealing with the relevance of the duration of the marriage and the conclusion in this case about the applicability of the term ‘childless’.
The duration of the marriage
The duration of a marriage is one of the relevant factors in determining the division of the assets upon a divorce. It is cited at section 25(2)(d) of the Act of the Matrimonial Causes Act 1973 (Act).
Importantly the existence of children is also detailed in the Act but at section 25 (1), which clearly indicates that the court will have regard to all the circumstances of the case, with the ‘first consideration being given to the welfare, while a minor, of any child of the family who has not attained the age of eighteen.’
The Act therefore does not detail that if the marriage is childless this will be a relevant factor in determining the division of the assets. What the Act details is that any child of the family’s welfare will be the first consideration. Their welfare broadly includes housing and financial support, whilst they are minors.
The duration of a marriage upon a divorce was historically segmented to long, medium or short by courts looking at the division of finances – albeit these references do not appear in the relevant Act. The notion of a medium duration has lost favour with the judiciary, and we now only consider a marriage to be short or long. The Dictionary of Financial Remedies (2021 Edition) suggests that broadly speaking a marriage of less than three years is one that can be considered to be short and a marriage of 15 years plus is a long marriage.
The concept of the childless marriage
This case looked at how the term ‘childless’ has become embedded and linked with the question of the duration of the marriage. As already detailed above, the relevant Act does not define the duration and importantly makes no reference to the term ‘childless’.
In any event, in a case where the value of the assets is substantial, the general principle is that the assets should be shared broadly equally. However, a party to a divorce can put forward arguments to justify why the sharing of the assets equally is inappropriate in their particular case.
In this case the Husband argued that because this was a short and, importantly, a childless marriage, his Wife should not receive an equal share of the assets.
The Judge then went back and looked at earlier cases to establish where this term had started to appear.
He notes that in the case of Miller v Miller  UKHL 24, there was mention that this was a childless marriage, albeit the parties had tried to have children. Mr Justice Mostyn points out that ‘No one suggested that this sad failure denoted ‘a completely different category of commitment’ and it does not include bringing into consideration the childlessness of the marriage, if that were the case.’
Since the case of Miller it seems that the word ‘childless’ has been extrapolated to add weight to an argument to support an unequal division of assets in a short marriage. The existence of children is a hugely relevant factor when addressing housing and maintenance needs and is detailed at s.25 of the Matrimonial Causes Act 1973. However, the childless short marriage is surely a concept that should not carry any weight as to the division of assets, it should solely be limited to the shortness of the marriage? Somehow the principle of childlessness has sneaked into case law and has arguably been misinterpreted until now.
Mr Justice Mostyn’s view of the childless marriage
The Husband’s barrister asserted that; ‘The having of children denotes a completely different category of commitment.’ Mostyn J responded; ‘I have to say that I fundamentally disagree with this…’
The Judge considered that to look at the nuances of a marriage, particularly the lack of any children, would mean that some form of discrimination was being applied. The fact that children are not present in a marriage does not make it a lesser marriage. Judge Mostyn held; ‘….a marriage is a marriage.’ He then rather eloquently stated :
“In my judgment 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.”
He concluded; ‘In my judgment this factor should be banished from any consideration of whether there should be a departure from the application of the equal sharing principle.’
I do not think the Judge could have been any clearer in his judgment and it can be anticipated that arguing that a short childless marriage is a reason to depart from an equal division will, in future likely be frowned upon.
On a final note, I really do consider that the term ‘childless’ implies some level of failure and fault and is really a harsh and negative description. I am pleased to note that this term is likely to disappear from legal arguments, although of course this is only High Court rather than appellate authority.
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