Over the last thirty years the number of divorces between men and women aged 60 and over has increased by an astounding 85% despite an overall decline in divorce rates. The last decade has shown men over 65 divorcing has risen by 23% and the number of women over 65 divorcing by 38%[1].
The steady rise of the “silver separators” increasingly means family lawyers are having to deal with specific issues for those who divorce later in life. Most cases will focus on the importance of what to do with the family home and where the parties will live.
If you own a property together you have a number of options:-
1. Often it is easier and sometimes necessary for you to sell your property to fund the purchase of two properties; one for you each to live in. In this situation it is obviously essential for you to consider what you can afford taking into account repayment of any mortgage and early redemption fees, purchase price, stamp duty, legal costs, moving fees and any furniture or white goods you will need. If you have an existing mortgage, this can either be redeemed from the net proceeds or one of you, if you need it, may be able to port your existing mortgage to a new property if you will benefit from a more preferential rate.
2. If there are not enough liquid assets to purchase a property for you both, you can think about applying for a mortgage. Some providers will consider lending terms extending into your seventies but with very specific requirements for affordability. It is best to seek advice from a specialist mortgage provider or broker.
3. One of you may wish to remain in the family home. In this situation you have a number of options:-
- Consider what other assets you own between you so that your ex-spouse can retain other assets of the same value. You may have cash or investments which can be easily split between you. Pensions are often extremely valuable and often overlooked when couples are separating. You may be able to offset the value of the family home against pension assets but this can be a complicated calculation and you must take legal advice before doing so.
- Obtain or increase your mortgage to buy out their share and transfer the property into your sole name. This process will be dealt with by a solicitor to ensure there is a contemporaneous transfer and payment of funds.
4. There are a number of reasons why you might consider continuing to jointly own the property or the other party delaying receiving their interest until a future date. The family courts avoid this, if at all possible, as continuing to be financially dependent or involved can have practical as well as emotional consequences:-
- You will need to consider the trigger event for other party to receive their share. This could be a specific date, a specific event, once the mortgage has been redeemed or death, in this case you would need to ensure you had also prepared an appropriate Will;
- There could be significant tax consequences if you are receiving your share in a property on a future date;
- If you remain on a mortgage but vacate the property this will impact your ability to obtain a mortgage for a new property;
Provided you are married or in a civil partnership who owns which assets should not impact upon the overall division of assets. However, what is a fair division of assets upon a divorce is often a far more complicated question which is impacted by a number of circumstances. For that reason, it is essential you receive legal advice from a family law specialist.
If you have any questions about separation or need advice, please don't hesitate to get in touch with the Family team.
[1] Office of National Statistics