A late life divorce is a divorce of partners later in their lives, often after many years of marriage. The term exists because until recently, it was rare for older married couples to divorce.
There are several reasons why this was the case. One is that attitudes towards divorce among older generations sway towards sticking by your partner and staying through tough times. It is also much harder to move on from twenty years of marriage than from two, especially if the couple shared good times and happy memories.
For those looking to divorce in a later stage of life, you may have a more complex financial situation to consider because you have been married for many years, during which assets have been acquired and built up over a long period of time.
The divorce process is the same regardless of how long you’ve been married or your age, but it is the significant financial implications for you and your family, which will need careful consideration and planning.
Below are the most important financial issues you may face should you choose to go ahead with a ‘silver divorce’.
Pensions are perhaps the most significant asset that silver splitters need to be aware of. You should seek legal advice to protect your entitlement to your pension or that of your partner.
There are many types of pensions with different benefits and terms. Pensions can be shared based on value or income, and when approaching retirement age, it is more usual to split the pensions on the basis of income.
Furthermore, the pension freedoms allow those accessing their pension from the age of 55 greater flexibility of their options, and when looking at this, there may be tax implications to be aware of.
If one of you has drawn your pension and the other has not, it can create an income gap. In those circumstances, options may include further employment, supplementing payments, deferring the pension share or further liquidity of pensions.
It is important not to overlook the state pension. The basic state pension cannot be split or shared on divorce. However, the additional state pension or protected payment element of the new state pension can be shared.
You may have a pension outside of the UK, and in those circumstances, you cannot obtain a pension share in the UK, so alternative options will be needed.
This may all seem confusing, which is understandable. It is often sensible to invest in independent financial advice and a pension sharing report by an actuary. The report can consider all pensions (including the state pension) and advise on the best options for sharing or offsetting your pension, enabling you to make decisions that best protect your retirement income and plans.
There are several ways to reach an agreement over financial issues when getting a grey divorce.
You may be able to agree on the terms with each other, or your divorce lawyer can forward proposals and negotiate on your behalf. If that is not possible, mediation is a very useful tool and involves using an independent, professionally trained mediator to help you reach an agreement.
The mediator provides pragmatic guidance and information to support both parties as a third-party neutral. It gives couples greater control of the outcomes and decisions concerning their finances on a fair and amicable basis.
Mediation has adapted to the current climate, and virtual online remote family mediation services are available.
If an agreement cannot be reached for whatever reason, you may have to make an application to the court who will decide for you both.
When you get a divorce, it can affect your Will. A divorce does not revoke a Will or change your Will back to its state prior to your marriage. Your current Will remains valid with one important caveat: legally speaking, if there is anything in your Will related to your ex-spouse, it is treated as if they had passed away. This can make things enormously complicated should you pass away without updating your will to reflect your divorce.
If the petitioner wishes to apply for costs against the respondent, then best practice is to reach an agreement on costs before the petition is issued with the court.
If costs cannot be agreed upon at this stage, the petitioner can include a claim for full costs in the petition itself.
If costs are agreed at the Decree Nisi stage, a ‘costs order’ can be made. If costs cannot be agreed upon, the petitioner can continue with their application for costs, and the court will decide.
Whilst it is possible to apply for a costs order in certain circumstances, the application’s outcome cannot be guaranteed.
At each stage of the court process, both parties are required to provide a breakdown of their costs. This will enable you to compare your outlay with that of your spouse.
The court will consider if the costs claimed are reasonable and look at both parties’ conduct before and during the divorce process.
If a costs order is made, the respondent is under a legal obligation to comply and pay, and if there is a failure to do so, this could result in enforcement action being necessary.
If the respondent does not agree to pay towards the divorce costs, it could cause unnecessary issues, which may increase costs and delays.
It is, therefore, best practice to try and reach an agreement regarding the cost of divorce before the divorce petition is even sent to the court to be issued. By doing this, you can reduce the respondent’s likelihood of challenging the issue of costs later on down the line.
Before any kind of legal planning occurs, you must consider what your future life will look like. This kind of planning is necessary no matter your age. Consider the following:
Setting out what you hope to achieve is necessary before you take concrete steps. Thinking over these topics and discussing them with your partner may make you feel that divorce is not the ideal option; or you may be more resolved than ever to separate and lead your own life.
If as a silver splitter you have assets from a previous relationship that you wish to protect, you may want to enter into a nuptial agreement before remarrying. Prenuptials are not currently legally binding in England, although courts will take them into consideration in a divorce. A court will uphold a ‘prenup’ if it can be shown that both parties’ needs are met. A cohabitation agreement is a similar form of protection should you not choose to marry.
Another way of protecting your wealth is through a discretionary trust. These are typically used in inheritance planning but can also serve as a useful form of asset protection. They can be used to provide for children from a first marriage, and subsequent generations, depending on the level of wealth involved. Whether this is a suitable option for you depends on your circumstances and is best discussed with a financial advisor.
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