Grey Divorce – How family lawyers should approach the unique challenges of later-life divorce clients

The recent announcement from TV presenters Eamonn Holmes and Ruth Langsford that they are getting divorced after 14 years of marriage has sparked interest from different corners. However, for family lawyers, our focus is on what factors are different, or particularly challenging about divorcing later in life.

There are several names for divorcing later in life, commonly ‘grey divorce’ or ‘silver splitting’. These terms are defined as couples getting divorced over the age of 50; essentially, parties who have less time to financially recover after divorce before entering retirement. The expression is colloquially used for those in their 60s, as life expectancy extends.

The most recent data from ONS only covers up to 2015. However, in the decade to 2015, the number of men divorcing aged 65+ increased by 23%, and women by 38%.

‘Silver splitters’ are seemingly driving the divorce trend, no longer remaining in unhappy marriages simply because society expects them to.

Holmes and Langsford are both aged 64, and whilst divorce is rarely smooth at any age, there may be additional considerations for older people particularly around finances and pensions.

Finances

As almost all family lawyers will attest, one of the areas that causes the most tension in divorce is the division of finances. Coming to a financial settlement can be stressful, and often where divorcing couples find themselves at loggerheads.

In the case of Holmes and Langsford, in theory their settlement should be relatively straightforward. They will likely have significant assets that will make up the matrimonial pot, and will need dividing. However, like many people around their age their son is an adult, meaning assets will simply need splitting as equally as possible.

Going forward, the considerations will be for appropriate property for each, and an income moving forward which will likely come from their continued careers in the television industry or, perhaps later, pensions.

Challenges that could arise in so-called ‘grey divorce’ could include:

• Marital vs non-marital assets if the couple married later in life
• Whether the marriage was the second, or third etc, of one or both parties
• The role of any prenuptial agreement

Taking the first and second points together, financial negotiations can become complex if there is debate over whether the assets were gained before the marriage, should be included in the matrimonial pot. For example, if one or both parties had highly successful careers, received significant inheritance, or had money from a previous divorce settlement. These are known as ‘pre-marital assets’ and one party may attempt to ringfence them so that they do not form part of the assets for division. This argument sometimes can hold significant weight, but is always considered in line with the total assets available, rather than being a hard and fast rule.

Financial disclosure would require each party to truthfully lay out all their money, assets and property. Any debate over what should be considered as part of the joint pot would need to be remedied through some form of dispute resolution.

Where this may not be necessary is if the couple had made a nuptial agreement either before or during their marriage, documenting all the relevant financial information and what should happen to it in the event of divorce. Pre and post nuptial agreements are becoming increasingly common for people entering their second or third marriages, ringfencing inheritance and property and ensuring any children from the previous marriage are provided for.

In the case of Holmes, Langsford is his second wife. There has been no mention of a prenuptial agreement, so it is likely that the financial negotiations will need a form of dispute resolution.

Financial Resolution

The family justice system is encouraging a cultural shift towards out-of-court dispute resolution, through imposing penalties for those who do not engage, without good reason, in non-court dispute resolution (NCDR) methods.

The updated Family Procedure Rules which came into force at the end of April 2024 have introduced several changes including:

• Widening the definition of NCDR to include all out-of-court resolution methods, not solely mediation
• Courts given the powers to adjourn proceedings to allow couples time to engage in NCDR, with or without the parties’ consent
• Parties required to set out their views on NCDR in open correspondence
• Potential cost orders in financial cases for those who fail to engage without good reason.

For parties struggling to agree on their financial matters, there are a plethora of options, including mediation, collaborative divorce, arbitration and private FDRs. These methods allow for the emotional aspect of the separating of a lifetime of assets to be factored into negotiations and can be a much more measured and reasonable way to start discussions regarding the breakdown of a marriage and how the assets will be split. Solicitors can often intentionally cause distress if one party is not yet ready to engage in any discussions regarding financial splits and the mediation route is a much gentler approach.

The potential challenges of pensions

Pensions are often avoided in divorce negotiations, particularly by women who often do not know that pensions should form part of the financial settlement. At Stowe Family Law, we conducted a survey which revealed that 60% of women did not get a share of their ex-spouse’s pension as part of their financial settlement, and a quarter of the married women who responded did not know whether their spouse had a private pension, with over ¾ not knowing the value of it.

Recent research from Scottish Widows and the Institute and Faculty of Actuaries (IFoA) revealed that only 30% of divorce settlements included pensions.

Whilst this is an issue across the board in divorce, with women often ending up far worse off than their male ex-spouse, there are unique issues affecting later-life divorces.

If the parties are not drawing from their pensions at the time of their divorce, the pensions will form part of the overall settlement, as with any divorce. However, the pensions are in payment, there can be complexities.

In relation to grey divorce specifically, pensions are an extremely important consideration. In the majority of cases, one party was able to be the main earner of the marriage and that logically means that their pension pot is much higher than that of their spouse. The parties had both intended to rely on that pension income into their retirement and a divorce will naturally mean that income is no longer readily available to the party without such pension provision. Sharing pensions fairly to ensure both parties have a reasonable income to live on throughout their retirement is a very important consideration indeed.

Where the pension(s) is in payment, they would still be split as if they were not in payment. Nevertheless, there are some restrictions as it is not possible to take a lump sum from a pension in payment, or one that has been used to purchase annuity.

A lifetime of emotions

Whilst amicable divorces are entirely possible, an emotionless one is far less so, whatever the age of the parties. The emotional fallout can be hugely significant, particularly in ‘grey divorces’.

In many cases, although not all, those divorcing later in life have known their partner for a long time. When they divorce, they leave the comfort and familiarity of that relationship and enter a new phase. Even if the end of the marriage was acrimonious, this can be incredibly daunting.

Other areas of concern may be:

• The impact of the divorce on adult children
• Impact on any grandchildren
• Re-evaluation of retirement plans
• Housing and location e.g., whether to move nearer to children
• Potential reduced mortgage capacity

The stability that they have know in the past and the security of their future with their spouse is no longer there, and therefore this can be a time filled with considerable anxiety. For family practitioners working with these individuals, a great deal of care and empathy must be given.

Ashley Le Core is a Senior Associate at Stowe Family Law