Are you a ‘silver splitter’? Thinking of marrying or divorcing later in life?

For a number of years The Office for National Statistics has been telling us that divorce rates amongst the over 60s (the silver splitters) is on the increase. In fact, in 2017 we were told they were at an ‘all time high’. A longer life expectancy, increased financial independence for women, a reduced stigma surrounding divorce, and greater pressure from social media and online dating sites is causing more and more people to ‘let go’ of the life they built with their spouses – sometimes over 40 and 50 years.

It’s not all bad news. The marriage rate for those over 65 has also increased by 40-60% according to the Office for National Statistics.

Divorcing and remarrying, particularly in later life, brings its own challenges. Let’s look at some of these challenges in turn.

Firstly, let’s look at dividing your assets after what might have been a long marriage.

After a long marriage, the starting point when it comes to dividing assets built up during the marriage is a 50:50 split. The court can, however, exercise discretion and there are a number of factors which the court can take into account. Every case is different and so there is no “one size fits all” solution to a division of the matrimonial assets. Some, but not all, of the assets to be considered on a divorce are set out below:

  • The family home – there are many different ways the court could look to divide this. The court could order that one of the parties is to remain in the house (if there are other assets available to offset against the equity in the property).  This might not always be possible and so you may need to sell the house to release the equity and allow both parties to purchase their own properties. TOP TIP: If your home is in your spouse’s name only, register your Matrimonial Home Rights with the Land Registry. This will provide you with protection as you will receive notice from the Land Registry if your spouse attempts to re-mortgage or sell the property.
  • Pensions – It’s important you understand the full value of your pensions – and in particular any benefits you may lose the chance of acquiring as a result of divorce. This is particularly important if you have given up your career and have lost the ability, sometimes over many years, to build up a pension pot to match your spouse’s. The courts have the power to order Pension Sharing Orders, or an order whereby you receive a pension income when your spouse receives their pension. Pension Sharing Orders are commonly used and they provide for a percentage of one spouse’s pension pot to be transferred to the other in a pension fund in their name.
  • Maintenance – The financially weaker party might be able to claim maintenance from their spouse. This is dependent on a number of factors including both parties’ monthly income needs and the income they generate themselves through work or other sources. If there is a shortfall in the income you receive and what you need, you can seek spousal maintenance and the court can make orders for one party to pay the other spousal maintenance to make up any shortfall. Assuming the income is available, the court can not only decide the amount of maintenance but the time over which it will be paid.

When it comes to divorcing, particularly later in life, there are some important other issues you need to consider:

  • Tax planning – Tax is a complex area and it is important to seek specialist advice at the outset as to what the tax implications might be on the sale, transfer or disposal of your assets.
  • Loss of capacity – What happens if you’re taken ill during divorce or financial remedy proceedings? Before you embark on divorce proceedings, it’s important to consider who could step in as what’s known as a ‘litigation friend’ in the event you lose capacity.
  • Wills – Once you are divorced, your Will needs to be updated. You might want to consider a “holding Will” whilst the divorce proceedings are underway to make your intentions clear in the event you die during the course of proceedings. This may not necessarily, however, prevent your spouse from claiming against your estate.

So, what’s next, if you want to remarry?

When marrying later in life, you may wish to ensure that in the event of a divorce, those assets which you built up before the marriage are protected. You might therefore consider a pre-nuptial agreement. Pre-nuptial agreements are not legally binding in the UK but provided certain criteria are met, the document is likely to carry weight with the courts in the event of a divorce.

Regardless of when in life you decide to marry or divorce, it is important you seek independent, specialist legal advice at the outset to ensure you are entering into a pre-nuptial agreement or financial settlement which is fair to you and your spouse.

Sarah Speed
Partner, Head of Family
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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