Divorce - The End Of The Beginning

Friday, 19th July 2013

Divorce is always painful. It may be your decision, or one forced upon you. You might have found someone new or be contemplating a single existence. You may be wondering how to divide millions of pounds of assets, or worrying about whether there are sufficient funds to pay two sets of bills. And you may be divorcing after a year of marriage or a very long marriage; divorce amongst older couples is on the increase.

Take Katherine who came to see me recently. She was an attractive, seemingly composed woman who'd asked to see me to discuss divorce. She told me that she and her husband, David had been married for nearly forty years. They had three children - Joe, aged twenty eight and working in the City, Simon, twenty four and still at University after a series of gap years, and Georgia who was in her second year at Sheffield studying medicine. I found out that Katherine and David were both sixty three.

David had announced to Katherine the previous weekend that he was no longer interested in their plan to retire to Dorset. He wanted a divorce and was moving in with Annabel, a colleague from work of whose existence Katherine had been dimly aware.

David had worked in insurance since he left university and had the benefit of a decent pension. Katherine had not worked since Joe was born. They owned a house in London and a cottage close to the sea in Dorset together worth about £1.2 million pounds.

I gave Katherine some information about how the court was likely to view her case.

"Yours is a long marriage and the starting point when looking at the assets will be an equal split. That will include David's pension, and the court will make what's known as a pension sharing order. In fact, you will probably get more than half the pension fund because women tend to live longer then men although the odds are shortening.

When it comes to income, the amount you receive will depend on David's salary and his and your financial needs. You will each have to prepare a budget. If there's enough money to keep you both, the court wouldn't expect you to work, but it wouldn't expect David to delay his retirement either, even though he's the cause of the financial problem."

"But what about the fact he's ruined my life after nearly forty years of loyalty, hard work, bringing up his children and putting up with his mother?"

"Irrelevant," I reply. "Courts simply don't care about behaviour. Unless," I correct myself, "it involves murder or extreme depravity. I'm afraid adultery doesn't count."

"And Simon and Georgia? Will he have to carry on supporting them?"

"It's too early to say. Probably not Simon, simply because of his age. With Georgia, you may well receive maintenance for her, though less that if she was at home full time, and David may be ordered to pay her tuition fees as he's paying them already. It's an area where Judges are split. Some say children should negotiate directly with their fathers and then pay a sum to their mother for the time they're at home. Others still order fathers to pay some child maintenance for adult students during their first degree, often including a prior gap year".

We went over some other concerns that Katherine had, then the meeting ended and she left with lots of forms to fill in. She looked devastated and I suspected she would never fully recover from the way in which her world had changed forever.

Divorce law is the same whether you're twenty three or sixty three. But the preoccupations of a young career woman, for example, are very different from those of a wife such as Katherine. What are the issues that particularly concern older couples facing a divorce?

Usually, they'll already have built up such wealth as they're going to have so they'll both be facing a significant reduction in their assets that cannot be replaced. This means facing up to a reduced lifestyle just at a time, certainly for someone like Katherine, when the world seems a very bleak and insecure place. Often wives who've been sheltered from financial concerns during their marriage can appreciate the support and guidance of a financial advisor who's neither pushy nor patronising.

Inheritance can play a big part in older divorces. The general rule is that the family's assets are divided equally. What of assets that have been inherited during the relationship? It's all in the timing. It can often seem very unfair when parents of one of the couple have died and the inheritance has already been absorbed into the divorcing couple's lives. On divorce, although there may be an argument for saying it's "non-matrimonial property", the chances are that sums inherited years ago will simply be shared equally along with all the other assets. So what about, say, Katherine's mother who's in her mid eighties with no other children and sitting on substantial property and decent investments? Provided she's in good health, the court will probably ignore Katherine's inheritance prospects. It's one sided, but stems from the British laissez faire approach to inheritance. Katherine's mum can leave everything to her predatory neighbour for all the court knows, and it won't be prepared to make assumptions. This is the case even though, for example, David's parents died a number of years ago and his share of their estate was used to buy Katherine and David's cottage in Dorset. A bit of pay back for Katherine, perhaps.

Couples with children often feel the need to protect them on divorce from the unscrupulous partners that they suspect their spouses have acquired, or may acquire in the future. The divorce court can't impose inheritance planning on the couple. The court's view is that, whatever asset share David and Katherine acquire as a result of the divorce is theirs to do with as they like. The court can't order the couple to make a will, nor order them to leave their estate to any particular person. However, couples often do agree to do this as part of the divorce settlement and draft wills can be attached to the document lodged with the court. The order also includes promises that the wills won't be changed in the future.

However, Katherine should be aware that Annabel may still be able to get her hands on some of David's estate if they live together for more than two years. Someone who's been a financial dependent of the person who dies can bring a claim against their estate and there's an automatic claim where a couple have been married. So even if David and Katherine decide to leave all their money to the children, this would not necessarily exclude Annabel from a claim, especially if, in the fullness of time, she and David marry.

What if Joe decides that he will never forgive his father for the way he's treated his mother and says that he's not allowed to see his son, David's grandson, Fin? Fin's two and David adores him. Would David still be able to see him? Well, there's legislation in place that enables grandchildren to see their grandparents if the court regards it as being in their best interests. Generally speaking, it's regarded as not in the interest of a young child to see a grandparent if there's hostility between the grandparent and their own child. However, there are cases when this could happen. Had Fin been older at the time David delivered his bombshell, and had a separate and independent close relationship with his grandfather, David would have had a chance. However, David's decision to bail out from family life with Katherine has probably come too early for that. He'll have to hope that Joe's attitude will soften as time goes by.

When I met Katherine, I had predicted somewhat gloomily that she would never fully recover from the way David had ended their marriage. However, suppose Katherine finds solace, swiftly followed by love, at the local gardening club where she becomes a very active member? What happens if she realises that all men are untrustworthy and strangely unattractive? Enter Jane, also a divorcee, who's discovered later on in life that she no longer likes men either. She and Katherine start living together, with the blessing of Joe, Simon, Georgia and Jane's children. As a cohabiting couple, they have the same rights as David and Annabel. And if they choose to marry, once the well publicised gay marriage bill is in place, or enter into a civil partnership, they will each have precisely the same claims over each other's property as David and Katherine acquired when they made their vows to each other during the sweltering summer of 1976.

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