According to data published by the Office for National Statistics (ONS), the number of people getting married and divorced aged 65 and over is on the up. For those ending their marriage, this demographic trend is often referred to as “grey divorce” – the term given to an increasing divorce rate for older couples in long-lasting marriages. In the press, married couples getting divorced in later life are commonly referred to as “silver splitters” or “silver separators”.

Why are more couples over 65 getting divorced?

There are several reasons why the over-65s divorce rate is increasing, some of which are:

• Increased life expectancy - both men and women live longer now;

• The stigma of divorce has been reduced for post-war “baby boomers” that do not fear the taboo of divorce;

• People are working longer and are better able to support themselves financially;

• Women enjoy greater financial equality. More married women work and pursue their own careers, which enables them to be less financially dependent on their husbands who, in the past, were considered the breadwinners;

• The older generation benefits from increased social connections as more use the internet to interact with others and generally have more opportunities to meet potential new partners; and

• Whilst not taken into account by the above-detailed ONS data, the recent pandemic is likely to have had an impact on divorce rates as couples and individuals have reassessed their future plans.

No-fault divorce for those over 65

Earlier this year, no-fault divorce law was introduced in England and Wales, making it easier for married couples to dissolve their marriage without the need to apportion blame or rely on a period of separation.

The age of the couple has no bearing whatsoever on the no-fault divorce process. The no-fault divorce process allows married couples, whatever their age, to file a divorce application in their sole name or jointly with their spouse based on the single fact that their marriage has broken down irretrievably.

It is a three-stage process commencing with a divorce application, which can be submitted online, followed by a conditional divorce order application 20 weeks later and a final divorce application a further six weeks later.

Provided the divorce is undisputed, the process currently takes around 8 months to complete although may take longer depending on how quickly the parties resolve their related financial matters.

For more information on the no-fault divorce process please click here.

What should older couples consider when getting divorced?

Whilst the divorce process should be relatively straightforward, there are several important considerations older couples should bear in mind when getting divorced, such as:

1.    Financial provision on divorce for the over 65s

The Family Court has broad discretion when it comes to sorting out financial matters on divorce. Regardless of their age, spouses and former spouses have financial claims against one another for a share of the capital and pension assets and for income provision, otherwise known as spousal maintenance.

In cases where the marriage has lasted a long time - probably many decades - the court will start from the assumption of equality, viewing each party as sharing equally the assets built up during the marriage. In most cases, this will encompass all assets held in their joint names and individually, including but not limited to the family home, other property, money in the bank, savings and investments, business assets and pensions (including those already in payment). Against the starting point of an equal division of assets, the court will cross-check the needs of both parties and depart from the principle of equal division if necessary.

The family home

For those aged over 65, it is not uncommon for the family home to be one of the most valuable assets available for division and for it to be owned mortgage-free.

It is important for older couples to consider how their housing needs will be met following divorce. For many couples, this will involve selling the family home so that both parties can use the equity to purchase their own home unless there are other investment properties available to be divided between them. Careful thought should also be given to what will be a reduced mortgage capacity as older couples approach retirement.

Pensions

Older couples must carefully consider their future income needs and retirement plans as they face different issues from their younger counterparts. It will be essential to obtain full, up-to-date and accurate values of all pension assets held by both parties and the benefits payable under all pension schemes, as well as their State Pension entitlements. 

For many couples divorcing in later life, there will be a need to ensure equality of income on retirement, which means a pension-sharing order may be required. It may also be necessary to appoint a pension divorce expert (otherwise known as a PODE) to prepare a report on pension issues, including calculations on how to share the pension assets to achieve a fair outcome. 

A detailed budget of the couple’s monthly income and expenditure should be prepared as this will help ensure they have sufficient income in the years ahead.

Other assets

As well as the family home and pension assets, it is essential to consider how other capital assets, such as investment property, savings, investments, insurance policies and business assets will be divided.

It will often be necessary to obtain advice from an independent financial adviser or accountant so that the tax implications of any proposed financial settlement on divorce are explored before the assets are divided.

2.    Wills and inheritance planning for the over 65s

It is important for anyone contemplating or going through a divorce to review their current will and update it, or to make a will if they do not already have one. This is because, under the normal rules of intestacy, your spouse will be considered your legal next of kin for inheritance purposes and will automatically inherit the bulk of your estate on death unless you have a will that says otherwise.

Many people over 65 have already made a will. But when going through a divorce that will should be updated to ensure it still says what they want it to say considering their matrimonial difficulties. If their will has not been updated by the time the divorce is granted, they should do so as soon as possible afterwards. We always advise obtaining specialist inheritance planning advice that considers the tax implications of your financial goals.

For more information on how we can help with the preparation of a new will on divorce and provide inheritance planning advice, please click here.

3.    Pre-nuptial and cohabitation agreements for the over 65s

As people live longer, it is not uncommon for silver splitters to enter a new relationship.

Older couples who wish to remarry should consider having a pre-nuptial agreement drawn up to protect the assets and wealth they have brought into the new marriage by reason of their earlier divorce. 

For those who wish to simply live with their new partner outside of a married relationship, a cohabitation agreement will set out the terms of their arrangements. For example, the agreement could make it clear, if agreed, that the other party will have no claim over the property or assets brought into the relationship, such as the home they live in as a couple that has been purchased using funds from the earlier divorce settlement.

If you are going through a difficult marital situation in later life and would like to discuss your legal options or any of the issues raised in this blog, please don’t hesitate to get in touch.

I offer a free 15-minute preliminary chat over the phone to explore how I can best help you.  There is no obligation, and you can decide how you would like to proceed once you have learnt a little more about the legal process. Please email me at shelley.cumbers@birkettlong.co.uk or call me on 01206 217378.