There is sadly an increasing upward trend for those in retirement to divorce, writes Louise Barretto, Head of our Family law team.
That this could involve anyone with whom we are familiar was brought home to me last week with the report that Sir Trevor Macdonald, the 81 year old former newsreader, has reportedly separated from his second wife, 65, who he married in 1986.
A generation or two ago this was not as likely as 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.
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.
I always advise clients that there is no one size fits all. When retired couples divorce health issues, life expectancy, capacity or possibly care fee issues need to be taken into consideration.
Always take independent legal advice so you know whether divorce is your best option 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?
The above is accurate as at 5 October 2020. The information above may be subject to change during these ever-changing times.