Simon Thomas
Posted on 9 Feb 2016

Divorce over 60 - Part Two

 

Divorce in the “third age” - Part Two

In Divorce over sixty - Part One we looked at some of the practical, mainly financial, issues that need to be resolved when there is a divorce later in life.

In Part 2, we consider some of the other aspects that will have to be addressed.

Children and grandchildren

The marriage partners may well have children and often grandchildren. The children will be older than those whose parents divorce at an earlier age but problems can still arise which have to be faced. 

The fact that they are grown up does not mean, of course, that children are unaffected or do not feel hurt. Sometimes the effect on adult children is even greater than on those who are much younger.

For example, the children may not want to have any contact with one of their parents, which can cause great upset and unhappiness for all concerned. Whilst the law will only in very rare circumstances become involved with “adult” children, a sensitive and focused approach is required where there are problems. We can often help by virtue of our experience in this area. We may also advise that counselling for the children and sometimes the parents also may help.

Sadly it is not unknown for grandchildren to become estranged from the grandparent. This can cause great unhappiness and a sense of loss to the grandchildren and, indeed, to the grandparents, particularly when there has been a close bond previously. We shall be writing about the legal position of grandparents in a future article.

Wills

The whole question of how wills are to be made is a very important issue for both of the former marriage partners. For example, the question of inheritance by children usually needs very careful thought. Does a partner who is the parent of a child, but who begins a relationship with a third party, ignore the children in his/her will and leave everything to the new partner (who may be much younger) and face the fact that the children may never see what they might otherwise have inherited?

Unmarried couples - “common law marriage” not recognised by the law

If the position of divorcing couples is complex and sometimes difficult, that of separating partners who are not married creates real challenges. 

It cannot be said too many times that, however long a couple have been together outside marriage, there is no such relationship known to the law as a “common law marriage”. There remains a common misconception that after a certain period, unmarried couples who separate have the same rights as those who were married. That is not the case.

When partners who are not married separate, their future cannot be assured by a change in the ownership of assets or even of pensions or income in the way that applies to former marriage partners.

In just a few rare cases, it is sometimes possible that one of the partners can claim, based on contribution or a promise of ownership, an interest in an asset which is not owned by him/her. Assets which are jointly owned will be divided (or sold and the proceeds divided) between the joint owners but otherwise each partner keeps for himself/herself assets which they own.

Similarly, the law relating to the payment of maintenance for the support of one partner by the other does not apply to unmarried couples. However, support for dependant children can be obtained even if the parents were not married.

Solutions can be found

Good legal advice is essential

It will be seen that the issues which arise when couples separate late in life are considerable. As one marriage partner said when asked why he was getting divorced at the age of over 90, “We had to wait until the children were dead”.

Solutions can, however, usually be found. Our experts have much experience in this area. Our aim is to guide clients as painlessly as is possible through the apparent minefields.

For more information or some preliminary, confidential advice, please contact Simon Thomas, Head of the Family Team by telephone +44 (0)1392 687630 (direct line) or by email simon.thomas@michelmores.com