The number of people getting divorced over the age of 50 has soared in England and Wales, leading to a phenomenon known as ‘grey divorce’. While some of those divorces could well come after a relatively short marriage, it’s also likely that many of those separations involve long-time couples deciding to end their marriage later in life.
Divorce at any age is emotionally and financially stressful, but when it comes after a long marriage, it can be an even more difficult chapter to navigate. The legal considerations involved in the divorce process can also be more complex after many shared years together.
How will assets be divided after a long marriage?
Along with agreeing where any minor children will live, the division of assets is typically one of the most contentious issues in a divorce. If the former couple can’t come to an amicable agreement, the court can step in to decide how assets should be split. The decision will be based on:
Length of marriage: The length of marriage will be one of the factors under consideration. While there is no set legal definition, a long marriage is generally regarded as over five years.
Contributions: The contribution of each party will also be assessed. This may involve their financial input into the relationship and time spent caring for any children or running the family home.
Needs: To arrive at a fair division of assets, each person’s financial circumstances and their needs will be considered. This could encompass the cost of moving out of the family home and into a new property, for example, in addition to future outgoings.
Health: Any health issues or disabilities will also need to be considered.
Earning potential: The income and earning potential of each person is an additional point of reference which must be considered when deciding upon a fair division of assets.
What happens to the family home?
If the divorce is amicable, the former couple may be able to come to an agreement about what happens to the family home. It could be that one person continues to reside in the home (this is often the case when children are involved) with their former spouse moving out, or that the home is sold and the proceeds divided.
Again, if this isn’t something the former couple can agree on, the court will decide what happens next. It may order the divorcing couple to sell the home and divide the proceedings in line with its instructions. Another possible scenario is that the court instructs one person to transfer their ownership of the house to the other party.
What are my rights to my partner’s pension?
When you split after a long marriage, you may be entitled to a share of your former spouse’s pension. This court will decide how this should be dealt with. The three options available are:
Pension offsetting: whereby the value of the pension is offset against another asset. This allows the pension holder to keep all of their pension, but in return they’ll give up an asset of similar value such as their share of the marital home.
Attachment order: The court orders the pension holder to pay a portion of their pension to their former partner. The downside of this choice is that the pension holder decides when and how to take their pension.
Pension sharing: A percentage of the holder’s pension is transferred to their former partner. That person than has control over that percentage of the original pension, including the right to take it when they wish.
How does long-term spousal maintenance work?
If one party has far less earning potential than the other, it may be that the person with the higher capability is ordered to make long-term spousal maintenance payments. These payments may continue indefinitely or cease upon a certain event such as the receiving partner remarrying, or a significant change in circumstances.
How will children’s needs be addressed?
The wellbeing of any children will always take precedence in court. While it’s preferable for those matters to be decided amicably with a family-based arrangement, the courts will step in if required.
If you’re not able to come to a private agreement, the court will decide on issues such as how much child maintenance should be paid and who’s responsible for covering costs for things like school trips and new uniforms. That decision will be based on where the child spends the majority of their time and whether the person paying is responsible for other children outside of the marriage.
What if one spouse has health issues or is near retirement?
Age and health both play a part in deciding how financial assets will be split. While a 50/50 split is desirable, it isn’t always practical as long-term health issues or impending retirement could lower that person’s earning potential, meaning they’ll require more from the assets to meet their future needs.
Will I be entitled to a share of my spouse’s future earnings?
Potential earnings aren’t treated as an asset to be divided up in the event of a divorce. That means that divorcing spouses aren’t usually eligible to receive a portion of those possible future earnings, no matter how long the marriage lasted. They may be a factor in how much spousal maintenance a court orders one party to pay, or how earning capability is assessed when splitting existing assets such as the family home, savings, investments and high-value items such as cars, jewellery and artwork.
If you’re going through a divorce, professional legal representation is vital to protecting your best interests and ensuring a fair division of assets. Contact us to chat to one of our family solicitors in confidence.
