Last Updated on August 18, 2021 by Editorial Staff
By Elen Stritch, associate at Stephens & Bolton LLP
Divorce in midlife – better for all when it’s civilised
January is said to be when more people file for divorce than any other month and the latest figures from the Office of National Statistics reveal that divorce in midlife is rising, with increasing numbers of people in their 40s and 50s now deciding to leave their partners and go their separate ways. A recent study shows that couples are now most likely to divorce during their 40s and that divorce rates for the over 50s have almost doubled since 1990.
Some attribute the trend to increased life expectancy. With people now regularly living until their late 80s and early 90s, those in their 40s and 50s are less willing to ‘stick out’ a further 30 to 40 years in an unhappy marriage; instead, they are seizing the opportunity for a second chance at happiness either by living alone or embarking on a new relationship. Increased life expectancy, and the fact that people are now settling down later in life, has also meant that the sort of “midlife crisis” previously more prevalent amongst those in their mid to late 30s, is now being experienced later in life as people enter their 40s and 50s.
A number of other factors are likely to be playing a part. Some middle-aged couples may have troublesome teenagers to contend with. Other couples may be “empty nesters” for whom any problems previously suppressed for the good of the children now rise straight to the surface. Another factor may be that women in their 40s and 50s are generally more financially independent than their mothers before them and so feel better able to support themselves outside of marriage.
For couples divorcing later in life, their cases will usually be more financially complex than is the case with younger couples, with more dependents and more in the way of assets to divide.
So how to divorce in midlife and keep it amicable? Below are a few key things that people should think about in order to get it right from both a legal and personal perspective:
1. Careful communication
People should think before they communicate with their spouse during the divorce process. Tensions are often running high and it is easy to fire off texts or emails as a knee-jerk reaction to events. This can inflame matters and it is for this reason that lawyers usually caution their clients to avoid all unnecessary correspondence with their spouse at this time.
Family lawyers will sometimes recommend that couples consider counselling. In a best case scenario, counselling can sometimes lead to reconciliation. In circumstances where reconciliation is no longer viable, counselling can nonetheless prove useful in opening the lines of communication. Individual counselling can also help people to come to terms with the marriage breakdown and cope better with the stressful divorce process.
If someone takes the decision to instruct solicitors with a view to progressing a divorce, it is advisable to let the other person know in advance that this decision has been taken. Receiving a solicitors’ letter out of the blue one morning can often set things off on the wrong foot, no matter how anodyne the contents may be.
2. Pick your lawyer well
There are many different types of solicitor and it’s important that you pick the lawyer who is right for you. For an amicable divorce, couples should try and instruct lawyers that are both practical and constructive, not someone who has a reputation for their ‘Rottweiler-like’ approach!
3. Consider Alternative Dispute Resolution
Divorcing couples should consider the most conciliatory forum in which to discuss issues relating to children and/or finances. Some separating couples can sit down and talk through matters face to face. However, this is difficult for many people because emotions get in the way and also, commonly, because one or both individuals want professional support and guidance during the process.
Couples should certainly try and avoid becoming embroiled in Court proceedings where possible and, instead, consider a form of ‘Alternative Dispute Resolution’ such as mediation. These are generally a lot less costly than going through the Court.
It is important that the couple keep discussions regarding children and financial matters separate. Some parents are tempted to use the other parent’s contact with the children as a bargaining chip when trying to resolve the finances. This is not only damaging to the separating couple’s often already strained relationship but it can also be damaging for the children who may be struggling to come to terms with the separation.
Wedding bells second-time around
It’s no surprise that, with divorce rates for the over 50s on the increase and life expectancy on the up, increasing numbers of people are giving marriage a second shot later in life.
For those who decide to get married again, it’s worth considering a pre-nuptial agreement. Pre-nups in England or Wales still do not strictly bind parties and lawyers cannot provide cast iron guarantees that a Court will later enforce them. However, Courts have been keener to uphold them when entered into between more mature couples, couples entering into a second marriage and those wishing to protect their children’s interests. It is often helpful for divorce lawyers to ‘set the scene’ and recite in the pre-nup why the parties’ life experiences (such as a previous divorce) have led them to want to enter into it.
Entering into a pre-nup can not only help parties protect the assets they bring into a second marriage but also open up the lines of communication and encourage a couple to frankly discuss how they will arrange their finances going forward and how any financial commitments to previous families will be managed. It forces them to think long-term and consider provisions for future costs of care for instance.
As a divorce lawyer, I recommend that couples marrying for a second time hope for the best and (cynically) plan for the worst. Such pre-nuptial agreements can allow couples to decide the outcome of any future separation on their own terms, rather than allowing a judge to make that decision for them.
Anyone thinking about getting married in their 40s or 50s should also think carefully about their Will and make carefully considered provision for their new spouse and any children from a first marriage to avoid undesirable litigation on their death. An existing Will should always be reviewed following a divorce and a new Will should be entered into on any new marriage (where, in most instances, any Will you have previously made will be cancelled).
It is helpful if you can discuss openly with your family – from both marriages – the details of your Will which will hopefully serve to avoid disputes and difficulties later down the line.
Although discussing the financial nitty-gritty of a relationship in the context of a pre-nup or your Will might seem distasteful before a marriage, such discussions often help couples be more informed and better equipped to commit to marrying for better or worse. Hopefully, the pre-nup and Wills can then be filed away and forgotten all about, leaving the happy couple to focus on the venue, honeymoon and the ever-tricky table plan.
Elen Stritch is an associate at Stephens & Bolton LLP specializing in family law. She works on all family-related matters including divorce and civil partnership dissolution, matrimonial finance including financial proceedings, cohabitation disputes, prenuptial agreements, and children matters. She is a member of Resolution.