Negotiating a divorce settlement with full knowledge of recent case law may enable couples to reach a decision earlier and with less time and money spent in court. A mediator can help put separating couples in the picture.
Just recently, the Court of Appeal heard an appeal from the High Court between Julie Therese Sharp and Robin Duncan Sharp. Lord Justice McFarlane said that previous case law had established the principle that the matrimonial assets of a divorcing couple should normally be shared between them on an equal basis. But the appeal before him required the court to consider whether that is inevitably the case where the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and where one of them has been paid very substantial bonuses during their time together.
In Sharp v Sharp, Mrs Sharp had worked continuously for one employer and proved her value as a trader in the wholesale fuel market. Mr Sharp worked in IT. Although their salaries were initially similar, Mrs Sharp received discretionary annual bonuses which totalled £10.5 million.
By September 2013 there were difficulties in their marriage that were soon to lead to divorce. Mrs Sharp filed a divorce petition in December 2013, but physical separation did not take place until July 2014. The first instance judge said: “No sufficient reason has been identified in this case for departing from equality of division.” So, the assets were distributed equally. Mrs Sharp appealed against that outcome. Her appeal was resisted by the husband.
“An automatic or blind application of a 50:50 split in every case can only be an impermissible judicial gloss on the statute [Matrimonial Causes Act 1973], which expressly requires the court to consider all the circumstances of the case,” said Lord Justice McFarlane. So he and the two other justices sitting in the Court of Appeal allowed Mrs Sharp’s appeal, set aside the High Court’s order as to the division of capital, and replaced it with a property adjustment order allocating their first home to the husband and the second to the wife, with an additional lump sum payment of £900,000 to the husband.
The case raises questions as to how long a marriage has to endure in order for it to be defined as “short”; and how long a marriage has to last before one spouse can share in another spouse’s fortune. It also raises the question of whether pre-nuptial agreements should be ubiquitous and highlights the role of a mediator in bringing the evolution of judicial thinking to the attention of separating couples.