Currently in the UK there is an increasing upward trend for the over 60s to divorce (silver separators). The UK record for the oldest divorcing couple is aged 98. A generation or two ago this was not the consideration that it is today. Our grandparents, or possibly parents, would have been more likely to stick together “through thick and thin” even if the marriage was unhappy and resentment had long since set in.
This trend has come about for a variety of reasons. Not only are we living longer but we are enjoying a better of quality of life than our grandparents and possibly our parents. Both parties will have worked the majority of their married lives, have travelled, perhaps survived a serious life threatening illness such as cancer. With the children “off their hands” and with retirement looming, one or both parties to the marriage may have decided that “until death us do part” is not for them and seek pastures new rather than graze along with their current spouse for another 20/30 years, or maybe more given increased life expectancies.
Before proceeding headlong to divorce it may be that there are other options to be considered. Separate certainly but consider a Deed of Separation or a Judicial Separation particularly if there are religious or cultural concerns. There may well be a financial downside so that on balance you then choose to remain married. You will need to weigh up your options.
Pension death benefits can be preserved other than on divorce. If you are looking to share pensions, where one spouse has the greater provision, then this can only be achieved on divorce where the Court is able to split these making a Pension Sharing Order.
If you want to ensure that neither of you can make future claims against the other, be it for income, capital, property transfer or adjustment, either during your lifetime or against your estate should you die before your current spouse, then you would need a “Clean Break” Order from the Court and this can only be achieved on divorce.
Be aware that such an Order is not automatic. In each divorce the Judge, before approving any Consent Order, if you and your spouse have been able to come to an agreement, or making an Order if you have not, will need to weigh up all the factors in your case including a list of statutory factors under Section 25 of the Matrimonial Causes Act 1973. The main factors will include:-
- income, earning capacity, property and financial resources which each of you has or is likely to have in the foreseeable future;
- financial means, obligations and responsibilities which each of you has or is likely to have in the foreseeable future;
- pre-breakdown standard of living;
- age of each of you and duration of the marriage;
- any physical or mental disability;
- your respective contributions, financial or otherwise.
It may be that there are considerations in maintenance to be paid by one spouse to the other, especially after a long marriage, where one spouse is by far the financially weaker party.
There is no “one size fits all” Order and each case will be decided on its merits and rightly so. Where there are Silver Separators divorcing there may also be health issues, life expectation, capacity or care fee issues to be looked at.
So before you go full steam ahead and file your online divorce, following your latest tiff with your spouse, take independent legal advice so you know if divorce will work for you and where you stand financially and how you can best resolve financial issues amicably with your spouse. After many years together (and some of them will have been happy) it is the way forward to leading a post-separation life of contentment. Who knows you may find happiness again sooner than you think and even re-marry? It is never too late. One couple even managed it at aged 98 (husband) and aged 90 (wife). Ted and Jean Parsons currently hold the UK record as the oldest couple to marry.
This article originally appeared in Surrey Magazine’s Autumn Issue – September 2019
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