In recent years, the UK has witnessed a marked rise in what is commonly referred to as grey divorce – the separation of couples aged 50 and above, often after decades of marriage. These individuals, sometimes called silver splitters or silver separators, represent a growing demographic reshaping the landscape of family law.

A Growing Trend

According to the Office for National Statistics (ONS), the number of men aged 65 and over filing for divorce increased by 23% between 2005 and 2015, while the rate for women in the same age bracket rose by 38%.

Several factors are considered to contribute to this trend:

• Longer life expectancy: With many now living into their 80s, retirement is no longer the final chapter but a new beginning.
• Reduced stigma: Divorce is more socially accepted, even in later life.
• Financial independence: Especially increasing among women, who are ever more confident in managing finances and this side of home life.

Unique Legal and Financial Considerations

Divorce later in life presents distinctive challenges compared to separations among younger couples for various reasons. We consider a few of these below.

1. Pensions and Retirement Income

For retired individuals, your pension may be your main income. Unlike younger couples who may still be earning and contributing to pension pots, older adults are typically no longer adding to their retirement savings. This means that in these scenarios the size of the pot is fixed or reducing, and any division must reflect the fact that the total available financial resources may not grow further.

Courts may order:

• Pension sharing: Dividing pension benefits to equalise retirement income, usually only applied to pension investments worth £100,000 or more, due to the cost of the sharing process.
• Pension offsetting: One party retains the pension while the other receives a greater share of other assets.
• Pension attachment: Far less common, but allows direct payments from one spouse’s pension to the other spouse, likened to ongoing spousal maintenance payments which end on the death of either party.

Specialist actuarial and investment advice is essential to ensure fair division and long-term financial security, and obtaining a pension sharing report is often a key aspect of these cases.

2. The Family Home

Older couples often own their homes outright, and this may well be the largest asset in the pot. Decisions must be made about whether to sell, transfer ownership, or downsize. If the parties are able to buy two properties from the sale proceeds of the family home this is often the preferred outcome. If there is not enough money to purchase two residences, this will become a concern for silver splitters who often won’t have a mortgage raising capacity. Courts focus on each party’s individual housing needs, especially if children are no longer dependent.

3. Spousal Maintenance

With reduced earning capacity post-retirement, spousal maintenance may be necessary, although often the ‘paying party’ will have limited income themselves. Courts assess the financial needs and earning capacities of both parties, aiming for fairness when considering the sharing of future income against the practicality of a clean break.

4. Estate Planning

Divorce necessitates a review of Wills and trusts. A divorce does not automatically revoke a Will, although it will cause a gift to your former spouse to fail. Updates are crucial to reflect new circumstances and to avoid unintended inheritance and tax outcomes. See our articles here for more information.

5. Healthcare and Long-Term Care

Older adults must consider how divorce affects access to private health insurance, long-term care funding, and assisted living options. These costs can be significant and should be factored into financial settlements.

Whilst parties’ current ‘needs’ may not include caring fees, it is possible that this is a concern for the future and expenditure may increase vastly. Therefore, it may be difficult to predict what the future needs of an older divorcee may look like.

6. Emotional and Social Impact

The emotional toll of ending a long-term marriage can be profound. Support from therapists, counsellors, and peer groups is often vital. Additionally, adult children and young grandchildren may struggle with the shift in family dynamics, especially if they feel caught between parents.

Second Marriages and Matrimonial vs Non-Matrimonial Assets

Grey divorces often involve second marriages for one or both parties, which can complicate asset division.

One party may have brought significant wealth into the marriage, including property, pensions, or inheritance. This raises questions about whether certain assets are matrimonial (acquired during the marriage and subject to division) or non-matrimonial (pre-marital or inherited and potentially excluded) and following the case of Standish we imagine there will be lengthy conversation in many new cases over whether assets have been ‘matrimonialised’.

Courts will consider:

• The existence of any prenuptial agreement
• The length of the marriage
• Whether assets have been intentionally or unintentionally mingled or used jointly and therefore potentially matrimonialised
• Financial and non-financial contributions made by each party
• The capital and income needs of both parties moving forward

Clear legal advice is essential to navigate these distinctions and ensure a fair outcome.

Grey divorce can be a new beginning and if there is a new relationship on the horizon, it will be crucial to consider taking advice on whether to enter into a cohabitation or prenuptial agreement. 

At Herrington Carmichael, our family law team is experienced in handling the complexities of later-life divorce and new relationships. We offer compassionate, tailored advice to help you secure your future.

Contact us today for expert advice and support.