Whilst divorce rates for younger couples seems to be on a decline, the rate of later life divorce is on the rise with the divorce rates for those 65 years and older having tripled since 1990.
There are various reasons for later life divorces such as growing apart, children having left home, retirement or age-related illnesses, but a common factor is because they do not want to start the last chapter of their life unhappy. It seems to have become more socially accepted and changes in lifestyles and opportunities mean couples feel less obliged to stay together in an unhappy marriage.
Whilst there are unlikely to be child-care or child support issues, there are many unique challenges of divorcing later in life. Unlike many younger couples, the older generations tend to adopt more traditional roles in the home and in the marriage, often meaning the husband is the breadwinner and the wife has sacrificed her career to care for the family and home. This typically means the husband tends to have earned more, is more likely to have a pension and may feel that he has contributed more financially, whilst the wife in contrast may have very little in savings, investments or a pension and could feel financially vulnerable if they divorce. The wife may also have limited earning potential due to her age and lack of work experience.
The wife in later life divorces can sometimes have limited knowledge of the household finances and her income may consist of an allowance from her husband. This may increase the wife's worries of how she will survive if they divorce. In terms of ongoing maintenance, her needs would need to be considered in detail against the husband's ability to pay.
The older the couple, the more likely they will have concerns regarding their pension provision and how they will manage in retirement. Money held in a pension is considered part of the pot of assets to be shared by couples on divorce. The pension will need to be valued along with the other assets and then a decision made about how the assets will be split.
When a couple who have been married a long-time get divorced, all their property, money, investments, pensions and debts are considered joint, and a starting point is that both parties are entitled to an equal share on divorce.
However, the court may depart from equality and in deciding how to distribute the resources, the court will apply statute and case law principles. Section 25 of the Matrimonial Causes Act 1973 contains the statutory factors the court must apply to determine how the income and assets should be distributed on divorce. The court operates a discretionary regime and therefore when considering the section 25 factors, different judges may adopt different solutions on identical facts, all of which would be within their judicial discretion.
It is therefore important that legal advice from a family solicitor is sought in such circumstances, to ensure that all matters are properly considered, in order to achieve a fair outcome.
Originally published by Shoosmiths, 24 June 2021
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