An increasing trend
Certainly, family lawyers have noticed in the last 5 years or so, the increasing trend for older couples to separate and/or divorce. Statistics show that, in the 10 years to 2013, the number of women over 60 seeking a divorce rose by 33%: the number of men over 60 divorcing in the 20 years to 2011 soared by no less than 73%.
We might all have our own views on the reason for these changes, not least the current regard, particularly in the west, for the “youth” culture. Whatever the cause, the effects and most particularly, the legal implications of a family breakdown later in life can be enormous and often distinctly different from those which confront a couple at a younger age.
Typical problems
Just some of the particular problems can be highlighted.
- In most cases, it is very much more difficult for the average couple to recover financially from a divorce at a later age. The length of time that one or both marriage partners have until retirement is likely to be much shorter: indeed one or both of them may already be retired. This means that their future earning potential is, by definition, reduced. There is less of an ability (often much less) for the parties to re-build up the cash reserves which they may have had as a married couple. This includes the very important value of pension funds, which will almost inevitably result in a smaller pension for both parties.
- If there are savings in either cash, investments and/or pensions held by one or both of the parties in a marriage which breaks down, there are likely to be discussions and possibly disagreements as to how much goes to each party. That would also happen even if separation occurs at an earlier age but later in life, potential inheritances are likely to have been received already, with nothing more to come from that source and as with pensions, the possibility of building up savings again is reduced.
- Where there are personal possessions which, for example, have been nherited from grandparents and which, but for the divorce, would have passed to the surviving spouse, these might now be the subject of argument in the divorce.
- Special assets such as holiday homes, boats, or even an art or vintage car collection can all cause real difficulties. If, for example, the holiday home is in the name of only one of the parties to the marriage but the couple have been using the home, either together or even separately and both feel attached to it and wish to continue to have it available to them, some painful decisions will have to be made.
- What is to happen to assets, be they investments or possessions, on the death of the legal owner? Perhaps the asset has been left with the non-legal owner or nothing has been specified about it. The whole question of how wills are to be made is a very important issue for both of the marriage partners.
- It is often the case that on a divorce later in life, one of the parties wishes to live with another person. That is likely to be relevant because the financial position of that other person will make a difference to the financial commitments of the divorcing marriage partner. For example, if that other person owns a house and the divorcing partner plans to live there, that divorcing partner will not have any capital requirements for accommodation expenses.
- In this day and age, most people have some sort of pension provision, even if small. When a divorce occurs, the law requires that, in most cases, the parties are put on an equal footing so far as pensions are concerned. For couples close to retirement, where pensions are split and shared, there is a shorter time to build up the value of pensions and so there will be much less available by way of income from pensions for each of the two households after divorce.
- The future of businesses and most particularly, family businesses, can result in real difficulties. Sometimes a family business is owned jointly by each of the marriage partners and both may work in it. One or more of their children may also work or even part own the business. It is rare (but not unknown) that both partners would want to continue working in the business after divorce and in that situation, a solution about the future of the business and its ownership would have to be made.
- Sometimes assets, including businesses, have a particular significance with one of the marriage partners. Family businesses fall into this category as do farms and long held family homes or estates.
These and many others are aspects of the practical financial arrangements that will have to be made in the divorce settlement. if that were not enough, then there are the less tangible but just as important issues that must be considered.
Children and grandchildren
The marriage partners may well have children and often grandchildren. The children will be older than those parents who divorce earlier in life but that does not mean that there will no problems. The children may not want to have any contact with one of their parents, which can cause great upset and unhappiness for all concerned. The fact that they are grown up does not mean, of course, that children are unaffected or do not feel hurt. Sometimes the effect on adult children is even greater than on those who are much younger.
Another consequence of divorce is that grandchildren sometimes become estranged from their grandparent(s). This can cause great unhappiness and sense of loss, not only to the grandchildren but also to the grandparent, particularly when there has been a close bond previously.
Wills
The issue of children also impacts on the making of wills. Does a partner who is the parent of a child but who begins a relationship with a third party, ignore the children in his/her will and leave everything to the new partner (who may be much younger) and face the fact that the children may never seen what they might otherwise have inherited?
Unmarried couples; “common law marriage” not recognised by the law
These are just some of the issues which can and often do when older marriage partners face divorce. If their position is complex and sometimes difficult, that of separating partners who are not married creates real challenges.
It cannot be said too many times that, however long a couple may have been together outside marriage, there is no such relationship known to the law as a “common law marriage”. If partners who are not married separate, then the law does not allow for their future to be assured by an adjustment of the ownership of assets or even of pensions or income, in the way that applies to former marriage partners.
In some cases, there may be a way that one of the partners can claim, based on contribution or a promise of ownership, an interest in an asset, such as a house, which is not owned by him/her. Assets which are jointly owned will be divided (or sold and the proceeds divided) between the joint owners but otherwise, with some rare exceptions, each partner keeps for himself/herself assets which they own.
Even though the issues which arise when couples separate late in life are considerable, solutions can, however, be found. Our experts have much experience in this area and can guide clients as painlessly as is possible through the apparent minefields.
As one marriage partner said when asked why he was getting divorced at the age of over 90, “We had to wait until the children were dead”.
For more information and free inital advice, please contact: CarlineG@moore-tibbits.co.uk or telephone 01926 491181 to book an appointment