It has long been accepted that the start date of a marriage (and therefore the date from which the marital acquest is calculated) is not necessarily the date of the marriage itself, but that any period of settled, committed cohabitation leading seamlessly into marriage should be included when calculating the duration of the marriage (CO v CO Ancillary Relief: Pre-marriage Cohabitation [2004] EWHC 287 (Fam).
However, Mostyn J found in this case that, in circumstances where the parties did not ever cohabit in the conventional sense either before or after the marriage, the date from which the marital acquest should be calculated was less than a month after the parties’ relationship began.
The decision also affirms that the endpoint for calculating the marital acquest should be the date of trial.
Facts
At the date of the trial the husband was 66 and the wife was 61
The parties agreed that their relationship began in December 2015 and that the husband began providing the wife with monthly financial support (between £5,500 and £10,000) immediately following the start of their relationship.
However, the parties were not in agreement as to when they commenced cohabitation. The wife argued that the parties began to cohabit in January 2016, but the husband argued there was no cohabitation before or even after the marriage.
The parties became engaged in September 2016, and married on 20 June 2017. The wife’s case was that they finally separated in December 2019 and the husband’s was October 2019.
The husband is a highly successful production manager for live music events, specialising audio and visual effects. One of the fundamental issues in the case was the value to be ascribed the husband’s business interest in Company A, as the overall marital acquest was significantly informed by the change in value of this company.
Husband’s case
It was the husband’s case that, as the parties never moved in together, the relevant date for the starting point of calculating the marital acquest should be the date of their engagement in September 2016. The endpoint, per the husband’s case, was the date of the trial. Given the difficulties faced by the music touring industry due to the pandemic, Company A had reduced significantly in value between the parties’ separation (on either the wife or the husband’s case) and the date of trial.
Wife’s case
It was the wife’s case that the starting point for calculating the marital acquest should be January 2016. It was accepted that there had not been conventional cohabitation but she asserted that from that date they were in a committed sexual, emotional, physical and psychological relationship. The endpoint, per her case, should be the date of separation as she argued that her award should not be reduced because the husband chose to keep Company A running at a loss throughout the pandemic.
Mostyn J’s findings
Mostyn J found that the appropriate start date for the marital acquest was January 2016 on the basis of the wife’s case that the parties were in a committed sexual, emotional, physical and psychological relationship. Whilst he did not set out the reasons for his findings in his judgment, it was implied that the husband’s financial contributions to the wife at the start of their relationship may have been a contributing factor to this finding.
Mostyn J found that the endpoint for calculating the acquest should be the time of trial. He stated there is no good reason to depart from the traditional and conventional terminus. Although the parties' relationship came to an end in December 2019 there had been no unjustified delay in the claim coming before the court.
What does this mean going forwards?
This judgment affirms the principle that the endpoint for calculating marital acquest should be the date of trial. This would seem logical, as if business valuations have gone down in the interim period between separation and the date of the trial that value is not capable of being shared if it no longer exists. In cases where the main asset is a business owned/controlled by one party, the other party may wish to carefully investigate any significant decrease in value between the date of separation and date of trial to be satisfied it is legitimate.
On the question of the starting point for calculating marital acquest, this judgment throws a spanner in the works of the previously established principles in Kokosinki v Kokosinki [1980] Fam 72, GW v RW [2003] EWHC 611 (Fam) and CO v CO. In these cases, the parties had lived together for 25 years prior to marriage, 18 months prior to marriage and 8 years prior to marriage respectively, and these periods were therefore added to the length of the marriage for the purposes of calculating its duration. In CO v CO, Coleridge J’s rationale for including the 8 years of cohabitation into the length of the marriage was that committed, settled relationships which often endure for years in the context of cohabitation (often by not always with children) outside marriage must be regarded as every bit as valid as those where parties have made the same degree of commitment but recorded it publicly by civil registration or marriage.
In E v L [2021] EWFC 60 Mostyn J has found that the same degree of commitment as marriage can be established within less than a month of a relationship commencing. He does not set out his rationale for this finding in the judgment, which leaves a degree of ambiguity on this point going forwards. In this case the parties never lived together in the conventional sense, they both maintained separate properties, but they travelled together extensively owing to the husband’s line of work. This arrangement commenced in January 2016 and continued throughout the entirety of their relationship with no distinct change after the marriage. It is difficult to understand how in January 2016, less than one month after it commenced, the relationship would satisfy Coleridge J’s definition of a ‘committed, settled relationship’ but Mostyn J may have been persuaded of the husband’s commitment due to the financial provision he started providing in December 2015.
Parties will need to be alive to the possibility of the court making this finding in cases where they did not physically move into the same property together either before or after their marriage, especially if one party starts providing financial provision to the other early on in the relationship.
Sarah Musgrave
Solicitor, Katz Partners