Divorce isn’t just a concern for the young or middle-aged. Increasingly, couples in their 60s, 70s and beyond are choosing to part ways, but what circumstances might people find themselves in when considering a divorce in their later years?
They may have been married 30 plus years, have raised children together who have now left home and they may even have moved on to having grandchildren.
This may be a second marriage following either bereavement or a previous divorce which could bring with it a second family with younger children who still need provision.
This might be a relatively short marriage that has been preceded by a long period of cohabitation so that the parties’ relationship length overall is still significant.
The Long Marriage
The starting point is that all assets built up during the marriage should be equally shared between the parties. This assumes that the parties have reached a stage in life where their income is equal on the basis that they are living off the pension provision of one or both of them. If however either party is still earning, any difference in earning ability can have an effect on whether or not all assets are equally shared. Pensions built up during the marriage are likely to be shared so that each person has the same income in retirement. This will generally involve a report from a pension actuary particularly if there is a significant difference in the couple’s ages.
The Second Marriage
The first question here will be whether there has been any attempt to protect assets brought into the second marriage from the first by way of a pre or post nuptial agreement. While it is not legally binding, such an agreement can be followed if the parties agree and, even if disputed, can have an impact on the division a court would order. A second marriage may mean a second family with younger children whose needs have to be provided for, despite one or both parents approaching or having reached potential retirement age. Where there are no dependent children, the court can be more sympathetic to allowing one party to retain assets that they have acquired on the death of their previous spouse or from a previous divorce provided that it does not leave the other party without an ability to re-house.
The Delayed Marriage
In many ways the approach is similar to that of the long marriage. The court extends its calculation of the length of the marriage to include any preceding cohabitation that has moved seamlessly into marriage. In these circumstances it is very hard for one person to argue that assets accumulated prior to the marriage should be protected from the other party’s claim and the approach of equal sharing is likely to prevail.