Divorce in later life

How to keep a late divorce from ruining your life

There is a notable difference between divorce in the early years of a marriage and later in life. In the former, spouses tend to grieve the future they had planned together. Aspirations they may have had for buying a bigger house, raising their children together, enjoying retirement and grandchildren, etc. are dashed. Even if the divorce take place in mid-life and not in the first decade of marriage, there is still more of the marriage ahead than behind. However, for the older couple, the perspective is different. They often feel the loss of what has come before. The joys of raising children together turn into separate visits to the grandchildren. A solitary retirement is lonelier and poorer than a shared one. We’ve written about many aspects of divorce, and child care and contact feature regularly. How is later-life divorce different from divorce with a young family? What factors lead to divorce among older couples and what are the unique issues they face?

Divorce in later life on the increase

The majority of divorces in South Africa in 2022 were granted to marriages that lasted between five and nine years, but the divorce rate for older couples is on the increase, especially among white South Africans. While detailed South African divorce data is limited, trends in countries like the US can provide valuable insights. For example, in the US, divorce rates for couples over 65 tripled from 1990 to 2021. A quarter of US divorces in 2019 were granted to those over 65. Where America goes, the rest of the world eventually follows.

Factors leading to divorce in later life

Some triggers for divorce are common to all age groups: infidelity, emotional or physical abuse, addiction. But long-standing marriages are subject to factors that don’t feature in earlier divorces.

Empty nest syndrome

Empty nest syndrome used to refer to women who felt bereft when their children left home, because they had devoted their lives to child raising. Women now in their 60s are more likely to have maintained their careers while raising children, and empty nest syndrome tends to refer to the feelings of emptiness many couples have when grown children leave home. The spouses realise they have little in common other than the practicalities of raising a family, and irreconcilable differences begin to surface.

Relationship stagnation

Though closely related to empty nest syndrome, relationship stagnation can happen whether or not a couple has children. Over time, the couple falls into a routine that no longer provides stimulation or excitement. This often only becomes apparent when careers are no longer as demanding or as high a priority as they were at a younger age, or when the couple retires. One or other spouse simply realises they want more from life than their marriage offers.

Changing values

Many couples grow together over time. Myriad discussions, debates and exchanges over the years clarify and consolidate viewpoints and a shared value system emerges. However, for other couples, life priorities change as they age. When goals and interests diverge, the connection between two people can be weakened.

Retirement

Retirement can cause, accompany, or amplify any of the above factors. A generation ago, women who had been homemakers while their husbands worked found the constant presence of their husband in the home after retirement an irritation. Now the challenge is more likely to be the impact of stopping work on two people who were used to finding purpose and satisfaction in their careers. The psychological effects and coping mechanisms may be very different for each individual and may drive them apart.

Impact of divorce on older people, especially women

In the second half of one’s career, or in retirement, most of a lifetime’s savings have been accumulated. Of course one can continue to put savings aside, and existing funds continue to grow, but the time horizon for achieving growth is short. Therefore, when assets are split, savings are generally halved. There is limited time for these resources to recover. But a single-person household’s needs are not half that of a two-person household. Living alone is more costly than sharing a space. The stark consequence of this is that most people suffer financially after divorce in later life. , The courts may consider spousal maintenance, particularly if one spouse has been financially dependent on the other during the marriage. But the people who suffer the most are women.

Data from the US shows that women who divorce after 50 see a 45% drop in their standard of living, on average, compared to a 21% decrease for men of the same age. Women often want to remain in the matrimonial home. Having shouldered the bulk of the domestic responsibilities, they often feel more attached to the home than their husbands do, but there is a price to pay for that continuity. In a marriage in community of property, which is likely to be the case with older couples, assets are evenly divided on divorce. In South Africa, marital property regimes play a significant role in asset division. While older couples are often married in community of property, other regimes, such as out of community of property with or without accrual, may apply, influencing how assets and debts are divided. Since the house is often the highest-value asset, in order to “buy out” the husband’s share, the wife has to sacrifice something else. This may be reduced maintenance or a smaller share of a pension. Yet maintaining a large family home may be far costlier than downsizing, so there is a double financial penalty to pay.

How to make later-life divorce work

Some couples do the maths and decide to stay together. They prioritise the lifestyle they had anticipated for their retirement over the happiness that ending a stagnant marriage could bring. But with more years behind than ahead, is it worth sacrificing happiness for financial security? There are ways to make divorce in later life work. It simply means recalibrating certain expectations and reframing lifestyle choices. It may mean delaying retirement in order to earn more money and allow retirement savings more time to grow. For those already retired, there may be an opportunity to take on part-time work to supplement pension income.

Selling the family home may be a wrench but is often the best option for both spouses. As the bond is usually paid off at this stage, both will have cash with which to buy a new property. It will mean downsizing, but that’s an inevitable consequence of divorce. That smaller flat will be cheaper and easier to maintain and can represent a fresh start in life. Staying in the marital home with its “ghosts” can make it harder to move on after divorce, especially if the children have moved out.

Avoid litigation

Divorce in later life can be complex. Although there are rarely battles over child care and contact, the financial settlement can be more complicated due to the accumulation of assets over a lifetime. There may a second property, investments, pensions, etc. One spouse may have made a greater financial contribution to the union, while the other gave up some earning capacity to prioritise home and family. Valuing these inputs can be contentious. But a high-conflict divorce should be avoided at all costs. A divorce that goes to court and drags on will eat up precious financial resources, reducing the total value of the joint estate that can be distributed.

Pension interest and the two-pot system

Recent changes in South African pension law, such as the two-pot system, have created uncertainty about how pension interest will be calculated on divorce. Pension interest is typically calculated as at the date of divorce, but the practical implications of these changes are still evolving. This will have a greater impact on older couples whose retirement savings are more substantial than a younger couple’s. Of course, if the couple is already retired, pension interest is not relevant. We will explain all in a forthcoming article.

Cape Town family lawyers can help

If you are considering divorce in later life and would like to explore your options, we can help. Simon Dippenaar & Associates Inc. is a law firm in Cape Town, Johannesburg and Durban with specialised divorce attorneys and family lawyers. Call Simon on 087 550 2740 or email info@sdlaw.co.za and we will look at your case in detail and advise you on the best way forward.

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