Divorce in later life

Advice  |   10 June 2013

“Silver divorce” is a term sometimes used for those who are divorcing in their 50s and 60s and beyond, after many years of married life.

“Silver divorce” is a term sometimes used for those who are divorcing in their 50s and 60s and beyond, after many years of married life. A number of high profile silver splitters have hit the headlines. Most recently the former Labour MP Baron Hattersley, 80, is divorcing his wife Molly, 82, after nearly 60 years of marriage. Whilst the overall divorce rate is falling, the number of divorces where the couple are over the age of 60 is rapidly on the increase.

The divorce of an older couple raises issues that are quite different to those for most separating couples in their 30s and 40s. The dispute is less likely to involve children, although ongoing contact with grandchildren may be an issue where adult children side with one parent or another.

Whilst future earning capacity needs to be considered for younger couples, if you are in your 60s you are more likely to have an established income and may be coming to the end of your working life. You will be looking at how you are going to support yourself, or be supported by your spouse, in retirement. A court is likely to be less interested in the income that you can command from your current or future employment and more interested in what income is to be received from your pension provision or what type of annuity can be purchased.

As an older person you may feel particularly vulnerable as your future financial security is threatened, especially if you do not have recourse to additional capital or an additional income stream. If your parents have already died, you would have no future inheritance prospectsm, whereas your spouse may still expect to receive an inheritance in due course, which would have been shared.

In agreeing how assets will be distributed, a court will look at your housing and income needs.

The court generally tries to share assets between the spouses, especially if it has been a long marriage. They will weigh up your relative contributions, adding allowances if one of you has sacrificed a career in return for bringing up children. The exception to this can be where one spouse has assets that were owned before the marriage or inherited and were never mingled or considered as family assets.

The home you have shared with your spouse may represent many years of investment, both financial and emotional, and it may be difficult to consider its sale. However, it is also likely to be the largest asset you own and a court will consider your separate housing needs. If you have no other savings apart from the house, an equity release scheme could be one option open to you. This would allow you to stay in the property whilst giving your spouse capital to re-house themselves. Such schemes can be complicated and expert advice should be sought.

The court will also look at your relative incomes in relation to the number of years you have spent together. It will look at both of your current incomes, your future earning potential and any other forms of income, like a pension, that you are in line to receive. Where there is an inequality in incomes, one spouse may have to pay maintenance to the other.

A further consideration amongst the over 60s is planning for failing health. If ongoing care costs are a potential issue, your solicitor will be able to obtain a prognosis of your likely medical needs and factor this into your settlement.

Your pension may be another asset of significant value that the court has power to use to balance the equation between you. To get an accurate view of both of your future incomes and capital from pension schemes you may need specialist advice from a pensions actuary, which your solicitor can arrange. They can provide a value for state pensions including top-up schemes as well as public sector and private pension schemes. This is especially important for women who are considered as particularly vulnerable in lack of a pension provision, and may be intending to rely on their husband’s pension to provide for them in their retirement.

Where there are several assets, you may have a range of options for how you are going to achieve a financial settlement between you. It may be possible to split, share or offset your assets including your home, savings and pensions to balance your capital and income needs. Achieving a clean-break is still possible, as the long term needs of each person are met.

Whatever your circumstances, you may feel energized at being able to embark on your retirement in new and independent circumstances or you may feel vulnerable, uncertain and insecure. If you are divorcing later in life, our experienced family law team will be there to help you.

For more information contact Paul Antoniou.