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Over 65 and over your partner, fear not

July 27, 2021 Speech Box

Many of us are aware of retired couples who have decided to divorce from their long term spouses. It’s hardly surprising, as we are all living longer, as a rule, and whilst the state pension age is increasing so are the expectations of older people that they want to live a little, on their own, if needs be.

Professional working people may have acquired several occupational pensions in the course of a forty year career, but not necessarily all couples.

Regardless of who was the bigger breadwinner when a couple who have been married a long-time chose to divorce, their money, investments, pensions, property – and debts – are considered, and the starting point for the Court is that both parties are entitled to an equal share.

The court will apply statute and case law principles. Section 25 of the Matrimonial Causes Act 1973 contains the statutory factors the court must apply to determine how the income and assets should be distributed on divorce.

It might surprise some people that whilst the Court will uphold the principle of equality it functions with a large degree of discretion in deciding how to distribute the resources. When considering the Section 25 factors, different judges may adopt different solutions on identical facts, all of which would be within their judicial discretion.

There is a range of acceptable outcomes and a family solicitor’s job is to be able to identify that range and advise a client on how to achieve the best outcome for them in the context of the facts of their particular case.

In my experience some clients’ priority is not the best possible financial outcome but rather a fair outcome with the basis of goodwill and friendship left intact.

In divorces of older people it is absolutely key to obtain solid, specialist pension advice at the outset in what can be a complex area with significant consequences.

If you are looking to share pensions, where one spouse has the greater provision, then this can only be achieved on divorce where the Court is able to split these making a Pension Sharing Order.

If you want to ensure that neither of you can make future claims against the other, be it for income, capital, property transfer or adjustment, either during your lifetime or against your estate should you die before your current spouse, then you would need a Clean Break Order from the Court and this can only be achieved on divorce.

Be aware that such an Order is not automatic. In each divorce the Judge, before approving any Consent Order, if you and your spouse have been able to come to an agreement, or making an Order if you have not, will need to weigh up all the factors in your case including the list of statutory factors under Section 25 of the Matrimonial Causes Act 1973.

The main factors will include:

  • income, earning capacity, property and financial resources which each of you has or is likely to have in the foreseeable future;
  • financial means, obligations and responsibilities which each of you has or is likely to have in the foreseeable future;
  • pre-breakdown standard of living;
  • age of each of you and duration of the marriage;
  • any physical or mental disability;
  • your respective contributions, financial or otherwise.

I have found that most of my older clients value the future relationship with their ex-spouse because they want to both be involved in the lives of their grandchildren in a meaningful way and don’t wish to create a situation in which future family gatherings may be marred by the detritus of their divorce.

If you would like to find out more about the issues raised in this article or need advice concerning family and divorce matters more widely, please call me on 020 7091 2869 or email lbarretto@bishopandsewell.co.uk.

You may also find my related articles on mediation and collaborative law and supporting children through the divorce process helpful.

If you are affected by similar issues or would like to have a related discussion in confidence, please call me Louise Barretto on 020 7091 2869 or email lbarretto@bishopandsewell.co.uk

Our Family lawyers, Litigation and Forming Families teams have the knowledge and experience to guide you through these challenging times.

The above is accurate as at 27 July 2021. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.

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