Silver splitters: Divorce and Re-Marrying Later in Life

Getting divorced at any stage of life is always a challenging time.

Emotions are understandably high, and the process can feel complex and alien. For older couples who may have been married for many decades, these issues can feel magnified even further.  It can also often be the case that adult children are very vocal about their opinions on the divorce and the untangling of financial matters which can make the separating couple feel as though they are under pressure from all sides.

The starting point for the Courts in England and Wales for all financial matters on divorce is a 50/50 split of the assets. If there is a specific reason to depart from this starting point, then the Court will take this into consideration. For couples who have been married for many decades, the length of the marriage makes it a greater hurdle to overcome in terms of satisfying the Court that anything other than a 50/50 split should happen. However, in some cases there are still valid reasons to justify a departure from equality e.g. where the housing needs of either party cannot be met from an equal division of the assets.

There are also some specific issues that older people divorcing should be mindful of.  These include but are not limited to the following:-

• The Family Home
• The family home is often the most valuable asset for division on divorce.You could look to have it transferred to yourself or one spouse could buy the other out of their share.Unfortunately, where the family home is the only asset, it is often the case that it will need to be sold in order to allow both parties to re-house as for many it becomes harder to secure a mortgage later in life (and the value of the property may have increased significantly over decades).
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• Income
• The stark difference in issues facing older couples as opposed to younger married couples is most visible when it comes to income.In cases of younger couples, the salaried income is often the primary concern.For nearer or post-retirement couples this is not the case.On the contrary, a large pension pot will have built up, capital value in the long held family home will be maximised and income is less likely to be from employment and more likely to be from savings, investments and pensions in payment.

Following a divorce at a later stage in your life or post-retirement, there are some prudent and practical steps you should remember to take in setting up your affairs anew.

• Updating your Will: It is vital to prepare a new Will following divorce to ensure that it reflects your wishes. It is also important to update or prepare a new Will if you re-marry.  The position in law is that marriage revokes your Will unless your Will contains an expressed “contemplation” clause.  By preparing a Will when you re-marry, you can make provision for your new spouse and even children from previous relationships.  Our specialists are able to set up efficient trust structures in your will which can protect and preserve your assets for your spouse and children.
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• Pre-Nuptial Agreement: A Pre-Nuptial Agreement is entered into before marriage and so if you do decide to re-marry it could be a key step to take. If you have assets from a previous relationship that you wish to protect, it is important that you consider entering into a pre-nuptial agreement with your intended spouse at least 28 days prior to marriage.
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• Discretionary Trust: Following a divorce and perhaps more so before re-marrying, you may wish to consider placing assets into a discretionary trust in order to provide for the children from your previous relationship and future generations.  This is a complex area of law and it is advisable to seek advice from one of our specialists on the level of protection that it can afford.

If you are an older couple or past retirement age and are considering divorce or separation or indeed re-marriage, our divorce lawyers can advise you on the best options.  We will always be upfront and honest about fees and speak to you openly, so you know what is happening throughout the legal process.

Written by Anila Naeem

If you have any questions about divorce or protecting your assets on re-marriage, please contact our Anila Naeem at anaeem@judge-priestley.co.uk or any member of our family team.