Later Life Divorce: Key Legal Issues and Practical Strategies for Practitioners

The rise in later-life divorce – often referred to as silver splitters – is an increasingly visible trend in family law. With more people over 50 choosing to separate, legal practitioners must navigate a complex intersection of financial planning, emotional needs, and shifting societal expectations. These cases often involve high-value assets, defined benefit pensions, and long-standing financial arrangements that require a nuanced, strategic approach.

Why older couples are divorcing

Several social and demographic factors are contributing to the increase in divorce among people aged 50 and above:

·        children leaving home;

·        increased life expectancy;

·        diverging personal interests and values;

·        health issues, including those related to menopause.

These separations frequently involve grown children, long-held assets, and significant pensions, making them legally and emotionally more intricate than younger divorces.

Understanding the legal landscape: themes in recent case law

Several recent high-profile decisions provide useful insights into how courts are handling divorces later in life, particularly where wealth is involved.

Distinguishing matrimonial and non-matrimonial assets

Courts are carefully assessing whether assets were built up during the marriage or brought into it beforehand. Wealth from inheritance or family trusts that has remained separate may be excluded from sharing, especially if both parties’ needs can be met without it.

Calculating lifetime needs

Where appropriate, courts are using actuarial methods such as Duxbury calculations to estimate the financial capital required to meet a spouse’s needs for the rest of their life. These calculations consider lifestyle expectations, age, retirement timelines, and health, with a strong focus on conservative, realistic projections.

Pension division and the age gap trap

Later-life divorces often involve large pension pots, particularly defined benefit schemes. A significant age difference between spouses can complicate equitable division. In some cases, maintenance may be more appropriate than pension sharing, especially if the pension accrued before the marriage.

Tailoring advice to client circumstances

For the financially stronger spouse

·        Carefully assess the origin of assets. Pre-marital and inherited wealth, especially when untouched by the marriage, may not be considered joint property.

·        If assets were transferred for tax planning reasons, use post-nuptial agreements to clarify the intended ownership.

·        Explore fair and practical housing arrangements, avoiding unnecessary liquidation of long-term assets or pensions.

·        Remain alert to issues raised by wealth held in trusts or through intergenerational planning structures.

For the financially weaker spouse

·        Emphasise the couple’s standard of living and any sacrifices made, such as pausing a career to raise children.

·        Where appropriate, argue that long-held or previously separate assets became integrated into the marriage.

·        If the client’s health or age affects earning capacity, especially in cases involving menopause-related symptoms, this should be factored into needs assessments.

·        Realistic financial planning, possibly supported by independent advisers, can help frame a sustainable settlement.

Non-court dispute resolution: a growing priority

Early and strategic use of alternatives to litigation, like mediation, private financial dispute resolution, and arbitration, can save significant costs and emotional stress. Experienced neutral professionals are widely available and suitable for a range of budgets.

Importantly, arbitration decisions can now be challenged through a process similar to appealing a court judgment. This makes it a viable, safe option even in contentious or high-stakes cases.

Funding divorce proceedings creatively

For clients who lack liquidity but are entitled to substantial settlements, consider front-loaded lump sums as an interim provision, especially in high-value cases. This approach, illustrated in Charman v Charman [2006] EWHC 1879, where the husband agreed to give the wife a lump sum that could be deducted from her eventual financial remedy award, can reduce reliance on litigation loans and avoid high interest costs. It can also streamline proceedings by ensuring both parties have equitable access to legal advice.

Menopause as a legal factor

Menopause is increasingly recognised as a contributing factor in relationship breakdowns. Physical and emotional symptoms can affect a woman’s health, work, and financial capacity, yet they are often overlooked in legal proceedings.

Family lawyers should be aware of the possible implications and ensure clients have access to appropriate support. When relevant, these issues should be addressed sensitively and factored into the broader conversation around fairness and long-term needs.

Final thoughts

Later-life divorces are often among the most complex family law matters. Practitioners must weigh decades of financial history, emotional context, and shifting needs, all while applying core principles like fairness and proportionality. Key takeaways for professionals include:

·        Understanding asset origin is critical when determining what is shared.

·        Fairness is a flexible concept, shaped by individual circumstances rather than rigid rules.

·        Realistic planning around costs, pensions, and long-term support is vital.

·        Tailored advice, grounded in the specifics of each client’s life and marriage, is essential.

With the number of older individuals in the population set to rise, the legal profession must continue to adapt, ensuring that later-life clients receive thoughtful, effective representation.