The changing face of the divorcing population and the financial implications for separating couples approaching retirement present new challenges for family practitioners as silver separation becomes more common, says Family Law in Partnership associate, Carla Ditz.

Over recent years, we have seen a dramatic shift in the age of the divorcing population. While the overall rate of divorce has fallen across all age groups, the number of people aged 60 and over who are divorcing has risen, making this the fastest growing category of divorcing couples. This category has earned itself the title “silver separators“.

According to data published by the Office for National Statistics in November 2015, the number of people divorcing over the age of 60 rose by an astonishing 85 per cent between 1990 and 2012.

There are many reasons why couples may choose to divorce later in life, including, to name but a few:

• Divorce does not carry the stigma it once did. This change in societal attitudes means the over-60s are more likely to divorce than the previous generation;
• As we experience longer life expectancies, some people question why they should have to spend the remaining 20 or 30 years of their lives in an unhappy marriage;
• Divorcing later in life means that, to an extent, the children of the relationship can be shielded from the effects of family breakdown, as they will inevitably be older and may have flown the nest. Couples therefore no longer feel the pressure to ‘stay together for the sake of the kids’; and
• Women in particular have become more financially independent, so they may feel more able to ‘go it alone’ as they are no longer reliant on their spouse for financial support.

What is also interesting, and perhaps unsurprising, is that the rate of marriage for the over-60s is also on the rise. Between 2002 and 2012, the number of women and men aged 60 and over entering into marriage increased by 57 per cent and 43 per cent respectively.

Legal perspective

For family law practitioners, the financial considerations for an older client who is separating will differ from those of a younger client. For example, younger clients are likely to have more working years ahead of them and therefore a flow of income. There may also be the needs of any minor children to be considered.

More mature clients will, however, face different financial circumstances. For example:

• Rehousing: It becomes harder, if not impossible, to secure a mortgage later in life, meaning that new properties in which to rehouse the parties will need to be purchased outright from the division of the marital assets. It is likely, however, that smaller properties will be required as any children of the family will have left home;
• Income: The focus will be on spousal maintenance (as opposed to child maintenance), but this is against a backdrop of retirement or the paying party approaching retirement age. It is likely that income from employment will shortly come to an end and reliance on income from other sources will come into play;
• Pension assets: There will be increasing reliance on pensions and pension sharing to fund outgoings in retirement;
• Wills: As in all divorce cases, the updating of a will is advisable. This may, however, be a more pressing concern for older parties; and
• Pre-nuptial agreements: Parties in their 60s who have divorced but wish to remarry may give careful consideration to a pre-nup, given that they may now have independent wealth which they wish to shield from any potential future divorce settlement and preserve for the children.

Finally, the increasing rate of divorce among the over-60s adds to the demand for cohabitation reforms. Those who have divorced later in life may prefer to cohabit with a new partner rather than remarry, but the law is yet to catch up with this growing trend and protect those in cohabiting relationships. The changing face of the divorcing population brings with it new challenges for family practitioners: an understanding of both the emotional and financial aspects of divorce for an older couple is increasingly required.

This article first appeared in Solicitors Journal 26 January 2016 SJ 160/3

For more on experiences of divorce later in life, see the real life experiences of divorce and separation in our divorce diaries website.

Our article of January 2013 also covers Silver Separation:

Until death us do part – Divorce and the over sixties

The overall divorce rate has dropped yet again. But for the over 60s it continues to rise. In 2001 4.6% of men and 2.6% of women who divorced were aged 60 or over. In 2011 this had risen to 8% and 5% respectively, with men initiating divorce in almost 60% of the cases.

So why is this “silver separation” or “grey divorce” bucking the downward trend? Some attribute it to the financial independence that many men and women enjoy in their sixties. Others point to the empty nest syndrome or retirement as the catalyst. And it is worth remembering that many people in their sixties are fit and active and look forward to another twenty years of good health – many want to spend that time pursuing new adventures perhaps with a different partner.

Whatever the reasons, those in their sixties suffer the inevitable side effects of ending a long marriage. Grief, depression, loneliness, financial worries and sudden lifestyle changes can all take their toll. There may be fears about hurting any adult children and worries about how family life will be affected going forward.

Divorce and money remain sensitive topics for the over sixties. Many will be concerned about how they’re going to make financial ends meet when they are alone. Indeed, the financial challenges of unpicking two lifetimes worth of assets and/or debts and of unravelling family arrangements can cause a great deal of anxiety. Often one party will have taken control of the finances during the marriage so it is imperative that the other party takes good financial advice and learns to manage their finances properly. There will be little opportunity for financial growth if they are no longer working.

Counselling, particularly couple counselling, can help to mitigate the worst effects of the divorce or separation. It can help the couple to work through their issues in a constructive and collaborative way.  There may be family events to attend and grandchildren to care for so it is crucial that a good relationship is maintained if at all possible. Counselling can help to set the ground rules for the new relationship that the parties will develop going forward.

As with all divorces, there are a range of process options to choose from. The parties might choose to settle their differences in court; they may work together outside the court process using collaborative law to resolve the issues between them; they may appoint an arbitrator to decide the issues or work with a mediator to bridge the gaps between them in an out of court settlement. Whatever process they choose it should be the one that is best for them and their family.

After a long marriage it should be in everyone’s interest to bring the marriage to a close with dignity and respect, leaving both parties ready to begin the next chapter of their lives.

Family Law in Partnership LLP is an active supporter of Age Concern Westminster. At Family Law in Partnership LLP we recognise the important role played in the local community by independent charities such as Age Concern Westminster in supporting those most in need.

For more information on any of the issues raised in this article, please contact any of our practitioners at Family Law in Partnership by emailing us at hello@flip.co.uk or by telephoning us on +44 (0)20 7420 5000.

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