The silver divorce

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Divorce is unpleasant at the best of times but when you are merely a few years away from an anticipated happy retirement with your spouse it is particularly galling to find yourself in the midst of marital difficulties. Over the past few years we have seen an increase in couples in their sixties or older wishing to get a divorce, and the term 'silver divorce' being used to describe this situation.

For such couples it may be that the cause of marital distress revolves around disagreements over wills, especially where there are adult children involved from previous relationships. In these circumstances, divorce could be the solution but it is also important to look at alternative ways forward.

Judicial Separation can be an effective tool for creating the legal position required to proceed with a financial remedy application, whilst trying to limit the damage caused to the relationship of the couple involved. The legal positions of divorce and judicial separation are very similar. The grounds on which judicial separation may be obtained are the same as those of divorce – adultery, unreasonable behaviour, 2 years separation with consent, 5 years separation and desertion. However, unlike divorce, judicial separation does not legally terminate the marriage.

The same financial orders that may be made on divorce can also be made on judicial separation, save for pension sharing orders and pension attachment orders. When a couple judicially separate, unlike divorce, they may still receive benefits under one-another’s pensions. Some of our older clients have sought the protection of a financial remedy without necessarily seeking to end the marriage. In such circumstances, judicial separation may be a more constructive way of achieving the desired result.

The catalyst for solicitor involvement in 'silver divorce' cases may be one party writing a will which does not provide adequately or fairly for the other's needs. In the cases we have seen, one person has looked after the finances during the marriage and told the other that they will be cared for, but the reality of the financial structure over the years has focused on tax saving and made the other person increasingly uncomfortable, the will being the final straw. This is particularly prevalent in second marriages.

The difficult nature of the will can arise due to a conflict of interest between one person wishing to provide for the children of the first marriage but also the spouse of their second marriage. In the unhappy scenario of the adult children being both overly prevalent in the parent's relationship with their spouse, and unpleasant towards them, we see cases where the adult children are preferred in the will, over and above the needs of the spouse.

The starting point for the discussion of the matrimonial pot is 50% and adult children are irrelevant when a court discusses the financial situation between husband and wife. Although the court may move away from 50% if one party has brought significant assets into the second marriage from the former, this does not diminish the fact that any spouse of any second marriage is still fully entitled.

In a 'silver divorce' scenario, judicial separation could be the solution to providing a proper entitlement to the matrimonial assets whilst keeping the acrimony between the couple as low as possible. It must be remembered that if a couple judicially separate a spouse will no longer benefit under any existing will so it must be re-drafted if that is the intention of the parties, but, as previously stated, the will may be the cause of the initial matrimonial dispute. It often the very fact that there is a refusal to re-draft a will to provide adequately for a spouse that creates this unhappy chain of events as a couple move into what should be, their golden years together.