Why the increase?

Research indicates that a number of factors are likely to be behind the increase in older people both ending and forming new relationships. In particular:

• The population is living longer and the gap between male and female life expectancy is narrowing.
• Wealth also plays a factor. Baby boomers tend to have good pensions and to have accumulated valuable property and assets. As a result, older couples are more likely to be able to afford to divorce in retirement than generations before them.
• Internet dating and people continuing to work beyond 65, and so being able to support themselves.
• The legalisation of same-sex marriage and the reduction in stigma surrounding divorce.

Divorce in older age

Deciding to end a marriage or civil partnership can be traumatic and overwhelming at any age. Doing so in retirement can bring added complications and stresses which can make life very difficult.

Older couples are less likely to have issues relating to arrangements for children or child maintenance than those divorcing at a younger age. The major issues to be resolved are financial and in particular housing both parties. Also providing an income for them leading up to and during retirement. The issues can be complex for older couples and can involve large pension pots, state pension entitlements, splitting large properties, lifetime allowances and inheritance tax.

Finances

Those who divorce in retirement are likely to have spent more time together and have more entwined finances than those who divorce at a younger age. In addition, both spouses will have fewer, if any, years left in which to work in order to make up any shortfall in their income. Even if they are working, the chances that they will be able to generate significant income over the rest of their working life is low.

For those divorcing in older age, mortgage borrowing is likely to become more difficult. The assets of the marriage will often be needed to fund the purchase of two separate homes. Even if mortgages are available they may be for much shorter terms with much higher repayments. Where there is less money in the pot, getting divorced in later life and providing for two homes and retirement incomes can be really difficult. However, with the right advice solutions which work for both parties are often possible.

Pensions are almost always important in cases involving couples over the age of 50. Pension assets can be divided in three ways:

• by physically splitting pensions under pension sharing orders.
• by one person retaining pensions with the spouse getting something of equivalent value from other assets.
• with the pension benefits being split between the spouses when they are taken.

The pension changes introduced in April 2015 now mean that men and woman have more freedom in cashing in their pension pots. Although they may be advised not to do so.

Marrying in later years

Couples entering into marriage or civil partnership later in life have often individually accumulated significant assets by the time of the marriage. They may wish to consider protecting those assets, both for themselves and their children, and providing greater certainty in the event of a future separation.

One way to do this is for the couple to enter into a pre-nuptial agreement. This is a formal written agreement between two partners prior to a marriage or civil partnership. The agreement sets out details and ownership of the couples’ property, assets, pension provision and income. It will make provision as to how this will be divided in the event of the breakdown of their marriage or civil partnership.

Whilst pre-nuptial agreements are not legally binding, they are one of the circumstances which the Court will take into consideration on divorce or dissolution. Provided that relevant conditions have been met, pre-nuptial agreements are being given increasing weight by the Court.

Seek expert advice

The issues relating to both marrying and divorce in older age can be quite complex. You should obtain expert advice from an experienced and specialist family solicitor. It may also be appropriate to get expert assistance from an actuary or financial adviser specialising in these areas. This is something which your solicitor will discuss with you during the process.

The right advice will help to ensure that you are able to make informed, future-focused decisions for yourself and your family. And to enable you to positively move forward, whether that be towards marriage or separation.

Article written and contributed by Beth Evans of WSP Solicitors

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances, and is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to WSP Solicitors directly.