Thinking about divorce? Look before you leap

29 December 2015

Here, lawyer Peter Jones, former head of arbitration service Resolution*, shares some consequences you may not have thought of, and offers salutary advice on staying together – or at least parting well.



I suppose it is unsurprising that separation and divorce rates among older people are rising. We all face longer active lives, good health and many more options than yesteryear.

Long-suppressed little irritations and tensions, that might have niggled for many years, but whose impact may have been lessened by the demands of children and busy lives, can be exacerbated once the nest is empty or a working life winds down.

There has been a gradual loss of stigma in divorce since today’s ‘silver splitters’ were young, and with increased longevity and activity, a husband or wife may simply meet somebody else they want to spend the next part of their life with. Social media has enabled people to connect with long-lost first loves or still glowing old flames. And more women work later in life, meaning they can support themselves outside marriage.

Divorce among people over 60 in England and Wales has been steadily increasing for many years, running against the downward trend of marriage break-up nationally. Divorce in this age group tripled to 1.3 million in the two decades up to 2013, according to the Office of National Statistics (ONS).

Considering a divorce?

As with any break-up, whatever the reasons, it is vital that you give it very careful thought and communicate honestly with your partner. Divorce is a seismic life change that rarely comes without trauma, upset and downside at any age – particularly so in older people, as we will see shortly – so do not rush into it.

I often say that if more people invested in walking boots, many would save themselves a lot of money and grief. Go for a long walk in the country or to the seaside with your spouse: it is the ideal setting for an exploratory conversation or to clear the air, as it is very difficult to go any distance without talking.

Express your feelings. Say how you feel. Tell them what you are worried about as this alone could resolve the issue. For example, it may be that your fears that they no longer love you are groundless and you can return home reassured.

Whatever you discuss on that walk – and whatever it results in – you have now broached the issue and should have some idea of how you both feel about it. Talk plainly but keep anger and rancour to a minimum – calmness and cooperation are always better for all concerned.

Can you save your marriage?

A marriage that has got into a rut, or where one party wrongly believes their spouse has gone off them or is having an affair, can often be put back on track with frankness and focus on both sides. However, where someone has been unfaithful or people truly are sick of the sight of each other, the situation may be harder to repair.

Nevertheless, if you both agree there is hope, look at how third parties might help retrieve the marriage. This could involve the support and guidance of a counsellor, priest, friends or children and might be hugely successful in saving your marriage.

If staying together is not an option, there are non-confrontational routes to achieving as ‘civilised’ a divorce as possible, including mediation and family law arbitration.

Bear in mind that these days, anyone planning to divorce must attend a mediation information and assessment meeting (a MIAM) before applying to take disputes over finances and property – including pensions – to court. Mediation can be an effective way of resolving disputes without involving the court. 

Mediation sees an independent third party, a mediator, help both sides reach agreement and is a highly effective method that can result in a swift resolution and save on legal expenses.

All this thought and consultation is essential before embarking on what is literally a life-changing course. This is especially important in divorcing later in life, which comes with particular repercussions. Those involved are also often harder hit by the impacts than any other age groups.

Find out how relationship counselling can save your marriage.

The costs of a split

Think about your new living arrangements. At a time of life when comfort and ease might be most important, it is likely that your housing and lifestyle will be reduced from what you are used to, for example, a small rented apartment after a large house and garden.

Any maintenance agreed might seem adequate when in work, but bear in mind that this will be reduced to your ex’s reduced pension income, or if they suffer financial loss through redundancy or ill-health.

Both sides lose. Split incomes don’t stretch as far as a joint one supporting a couple, particularly when there are two sets of maintenance costs and heating, lighting and water bills to pay. And that’s after the court costs and professional fees that come with divorce, which usually run into many thousands of pounds: higher in a mature break-up.

Divorce can be a very involved process with older people, because invariably they have more assets and more complicated savings and property portfolios to sort out. If you own or share a property outside England and Wales, this is another jurisdiction with different laws and it may cost more to sell it – a process that must be navigated by experts in that country, who will incur fees.

You will also need independent financial advice, to ensure that the division of retirement income is fair – including pension lump sums and ongoing receipts. Similarly, other savings and investments are likely to mature over the next few years, so all financial holdings should be closely scrutinised to guarantee equitable shares for both parties when they do.

Other policies, such as healthcare, insurance and death benefits should also be listed and understood before the divorce is completed, as they might have to be cancelled, cashed in or reorganised.

You must also give full disclosure of all your assets and financial resources; everything you own – jointly or singly – should be listed, even if you consider yourself the ‘wronged party’. The recent, high profile Sharland and Gohil ruling by the Supreme Court could see deceitful spouses hauled back into court for revised settlements – with them liable for all costs.

Find out how much a divorce costs.

Dividing possessions

Shared possessions, household contents and effects can become a battleground in any divorce. However, when people are older, individual items might have a greater sentimental value, generating greater conflict and bitterness – and the future of much-loved family pets can also spark disagreement.

Court proceedings are public and journalists may well report them, which might be embarrassing – and, indeed, damaging if you run a business, since commercially sensitive information might be fed to your competitors. For this reason, it is worth looking into the arbitration route, which bars the media.

Find out how to protect your financial assets during a divorce.

The effect on children

Do not forget that, as in all divorces, you will have to think how to break the news to any children. They may be adults, but will still probably find it upsetting so sensitive communication is important. Also consider the impact on grandchildren.

If children are grown-ups, they will certainly be better equipped to understand the reasons surrounding a divorce and so are more likely to take sides.

Similarly, friends and other family members may split into camps and even if loyalties are evenly split, you may find that divorce doesn’t only end the marriage relationship but leaves you considerably lonelier – and with a smaller support network should you become ill or have other problems.

The grass may not be greener

Many older divorces involve the break-up of marriages that may have survived up to now for more than than 50 years. Until you are actually without somebody you have shared most of your life with, you cannot know how much you will miss them.

Depression rates among elderly singletons are soaring and the emotional impact of a divorce – before, during and after – must be considered. Even when the process is quick and amicable, it can be hard on anybody: for seniors, it is often a thoroughly bruising experience that delivers significant life changes.

As such, it is absolutely vital not to make things even worse with combative, aggressive litigation – which can also be prohibitively expensive. There are alternative routes that avoid open warfare and an expert family lawyer can guide you towards a ‘non-conflict’ resolution.

Leeds family lawyer and arbitrator Peter Jones is former national chairman of Resolution, which seeks a constructive, non-confrontational approach to divorce. www.resolution.org.uk

The opinions expressed are those of the author and are not held by Saga unless specifically stated.

The material is for general information only and does not constitute investment, tax, legal, medical or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.