Divorcing After Decades: Why are the over 60s so keen to untie the knot?

Words: 436

Time to read: 2 minutes

The Office of National Statistics has recently released data that shows that divorce among the over 60s is on the rise.  This has sparked a great deal of debate surrounding the underlying reasons for this trend. Suggestions include increased life expectancy, the lack of stigma associated with being divorced and people (men in particular) having their midlife crisis later in life once the children have left the nest.

There is potentially another aspect of modern living which could be contributing to the growing number of the 60+ generation who are willing to call it a day on marriages. Thirty years ago, when these so called “silver splitters'” parents were in the 60+ bracket few homes had a computer, there were only four channels on the television and if you wanted to stay in touch with old friends you had to either put pen to paper or pick up your (home) phone or take a handful of change to a local phone box. Today social media is everywhere and our scope for interaction with people and information has increased exponentially over the last few decades whether through computers, television or mobile phones. This has made connecting with long lost school chums or old girlfriends/boyfriends much easier and the 60+ generation is no exception. After all, who hasn’t run into their parents on Facebook! Online dating is also more accessible and socially acceptable than ever before and there are many websites dedicated to finding love for the older/post-retirement generation. Thanks to the online revolution, becoming single again in one's 60s may not be as daunting or lonely a prospect as it used to be.

Whilst it is important to remember that each divorce will turn on its own facts, couples who have reached, or are approaching, retirement will often have different priorities to those who are divorcing in their 30s or 40s. The children are likely to have grown up and will have completed their education and the parties will be at or near the end of their working lives and will most likely be looking to pensions for their income.  After so many years of financial interdependence, providing each party with adequate means to live financially independent lives may be difficult to achieve, particularly where one party has been out of the workforce for several decades and has no scope for developing any earning capacity or contributing further to a pension. Perhaps then, those silver splitters wanting to re-establish their independence or start a new relationship following their divorce might find it more difficult to achieve the financial independence to go with their new found single status.

UPDATE: Supreme Court Hands Down Judgment in Prest

Supreme Court Unanimously Decides in Wife's Favour

The Supreme Court of the United Kingdom has today delivered its decision in the case of Prest v Petrodel Ltd & Others, finding that, for the purposes of section 24(1)(a) of the Matrimonial Causes Act 1973, the husband was indeed "entitled" to various properties which are held within a corporate structure and which had formed part of the wife's award at first instance. It is a huge decision, particularly for big money divorce cases, and one which many people may be surprised at following the judgement of Lord Justice Rimer at the Court of Appeal.  The judgement and summary press release can be found here and previous discussions on this topic, including on the husbands failure to provide adequate disclosure can be found here and on Chambers Women in Law Blog here.

No doubt this is a decision which will generate a huge amount of debate and is arguably as significant a family law decision as Jones v Kernott (cohabitation) and Radmacher v Granatino (pre-nuptial agreements).

UPDATE: Supreme Court Decision in Prest

Decision due in Big Money Divorce

The family law world is anxiously waiting for the Supreme Court’s decision in Petrodel Ltd & Or v Prest which could mean a significant change to the way big money divorce cases are dealt with in this country, particularly when there are international assets and/or poor financial disclosure.  For some further thoughts and details of the case, please see my guest post on Chambers Women’s in Law Blog at http://womeninlaw.chambersandpartners.com/?p=2230.

Redefining marriage: Can I marry myself?

"Do you take yourself to be your lawful wedded...er self?"

Word count: 981

Time to read: 3 minutes

Er…no.

As a family solicitor you do, on occasion, get asked some pretty strange questions.  This one came from a friend on a night out after she had recounted, with some frustration, details of a recent date which had not gone as well as she had hoped. From that lighthearted outburst followed a semi-serious debate about the definition of marriage, which has been given some very serious attention in recent months due to the Marriage (Same-Sex Couples) Bill which is currently being considered by parliament.  The topic has also been given some serious consideration in other jurisdictions around the world with both New Zealand and now France voting to legalise same-sex marriage within the last week.

The current position in England and Wales is that only a man and a woman can enter into a marriage and only same-sex couples can enter into civil partnerships.  The current government is looking to change this and allow same-sex couples to marry. This involves significant amendments to no less than nine different pieces of primary legislation including the:

Marriage Act 1949;

Matrimonial Causes Act 1973
Domicile and Matrimonial Proceedings Act 1973;
Civil Partnership Act 2004; and
Gender Recognition Act 2004.

Some of the amendments which might come to the attention of practitioners are:

• The creation of a ‘jurisdiction of last resort’ (DMPA 1973) for those same-sex couples who marry in England & Wales but who remain habitually resident overseas where their marriage is not recognised and therefore divorce is not available to them.
•  A provision which allows individuals already in a marriage to change their gender without the need to formally end the marriage first (GRA 2004).  The same applies for civil partnerships where both parties wish to change their gender simultaneously (it is not possible to have a civil partnership between a man and a woman).
•  When considering the facts to support the irretrievable breakdown of the marriage, adultery can only be used if the respondent had sexual relations with someone of the opposite sex (MCA 1973). This would effectively preclude married gay couples from being able to rely on this fact when seeking a divorce.

One of the points raised by those who oppose the amendments is that same-sex marriage violates one of the fundamental purposes of marriage, that of procreation. Whilst there is no legal requirement for a couple to have either the desire or ability to have children in order to marry, the concept of a husband and wife creating a stable and balanced environment through marriage to raise their children has long been established in both religion and society and the traditional legal definition of marriage has to be viewed in that context.  But let’s take children out of the equation. If procreation is truly no longer a tenet of marriage then how important is it that the couple wishing to marry have the biological potential to create new life without the need to resort to science or surrogates?  If the answer to that is ‘not much’ then arguably the primary reason for marriage becomes the commitment to each other and all that entails. 

So what if you did want to make that commitment to yourself? Why not? There are some obvious perks.  You would not have to share the wedding gifts with anyone, although writing all the thank you cards on your own could be rather tedious.  And if you decided to go your separate way then any arguments over the division of matrimonial assets are unlikely to be acrimonious.  Then again, would you be committing adultery if you slept with someone else?  A potentially significant question if you were looking to justify divorcing yourself.  Although, you might also have trouble convincing a judge that you have not cohabited with yourself for a period of six months leading up to the petition, depending of course on when you discovered your adultery.  As you can see the idea quickly lends itself to absurdity.

Returning to the proposed Bill, if the purpose of the amendments is to grant people the freedom to marry whomever they choose then why not take that concept further and allow marriage between more than two people (another objection raised by opponents to same-sex marriage)?  Last year, a court in Brazil controversially approved a marriage between three people. This was not a traditional polygamous marriage where a husband had more than one wife but an equal union between three people equally committed to building a life with one another.  Were we ever to go down that route then the necessary amendments to primary legislation are likely to be much more extensive than the current ones and the family law profession would need to adapt significantly, particularly for when such relationships break down.  After all, it is difficult enough to resolve matters of matrimonial assets, contributions, pension entitlements and spousal maintenance etc. when there are only two people involved let alone three or more!

Joking aside, the debate surrounding the redefinition of marriage is a serious one and is unlikely to go away no matter what trajectory the Marriage (Same-Sex Couples) Bill takes and is one practitioners should be aware of. In recent decades the changes in society, science and the law have been profound. Consider the staggering developments in IVF treatment over the last 50 years (and the consequent rise in alternative families), not to mention the establishment of civil partnerships in 2004 and the more recent rise in popularity of pre-nuptial agreements since the Supreme Court’s decision in Radmacher in 2010.  It would be foolish not to expect family law to continue to evolve as society progresses and we cannot ignore potential amendments to legislation or the impact that such changes will have.

Who knows what we will be debating in 2023! That said, I don’t think I will be advising my friend to give up on the dating scene just yet.

Thanks for reading.