More couples preparing for the challenges of the ‘grey divorce’

By Tony Poland, LegalMatters Staff • While people are generally living longer that doesn’t necessarily result in longer marriages with some unions ending in what has become known as the “grey divorce,” says Toronto family lawyer A. Julia P. Tremain.

Tremain, a partner with Waddell Phillips Professional Corporation, says while there are common aspects of divorce at any age, “unwinding a long marriage” can be complicated.

“Like with any divorce, there is an emotional aspect to it. For some people, it can be a difficult process after a lengthy relationship,” she tells LegalMattersCanada.ca. “For those in the later stages of their life, it isn’t necessarily their first marriage. Maybe it’s their second or third.”

According to Statistics Canada, about one in five people in their late fifties were divorced or separated (21.6 per cent of women and 18.9 per cent of men) in 2011, the highest among all age groups. By comparison, 30 years earlier, 6.9 per cent of women and 6.2 per cent of men in their late 50s were divorced or separated.

Retirement could lead to stress in a relationship

Environics Research reports Canadians aged 65 and over who say they are divorced rose from four per cent in 1981 to 12 per cent in 2011. The report found that Baby Boomers, those born 1946 to 1964, are most likely to say they believe retirement will introduce significant stress into their marriages, and suggest divorce among the age group is not likely to diminish in the years ahead.

“According to the Vanier Institute, the median age of people getting divorced rose by about five years between 1991 and 2008. This phenomenon is sometimes called the rise of ‘grey divorce,’” writes David MacDonald. “Whereas Elders who rated their marriages as just so-so were likely to ‘stick it out’ (preferring not to break religious vows or experience the disapproval of others), Boomers are more likely to prize their own happiness during their remaining years on earth. And if it costs more — well, that’s never stopped them before.”

Even if the split is amicable, one of the biggest complications in the grey divorce can be untangling financial assets, Tremain says.

“People have often accumulated many assets over the time if they’ve been married for a long time. It may be difficult to establish if they had any property when they walked into the marriage,” she says. “Getting financial records can be a challenge. For example, if one spouse had a sizable investment 36 years ago, how do you prove that? People generally don’t have their records from 1985.

“Getting the right disclosure is not always a simple matter because things like bank records only go back seven years.”

The process can be daunting

She says the process can be daunting for “a couple who has been in a fairly traditional marriage where one spouse has been more in charge of the money than the other.”

“If the husband is in charge then the wife may not be aware of what they have and what their expenses are,” Tremain says. “It can be a bit of a challenge to learn all of that when you’ve never had to do it.”

She says finances can also be tricky for a spouse who has to start fresh and must learn to manage on their own, adding it is always a good idea to consult a financial adviser. 

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A prenuptial agreement may help in some matters but it may not hold up after a lengthy marriage, Tremain says. 

“If you made an agreement 30 years ago, it may show what your intent was but it may not necessarily carry a lot of weight,” she says. “For example, a young couple in good health could enter into a pre-nup anticipating they would never pay spousal support to the other. 

“But now they are in their sixties and one of them has some significant and chronic health concerns. That person can no longer work and is unable to support themselves. In that case, a judge may not pay much attention to the agreement.”

Are you entitled to your spouse’s inheritance?

Tremain says the question of rights to a spouse’s inheritance can also come up.

“They are excluded unless you mingle them into the net family property,” she says. “If you inherited some money and then you put it into the matrimonial home to pay down the mortgage, it is no longer excluded. Essentially, if you want to keep your inheritance you have to separate it from shared assets. Put it in an investment account.”

Revenue splitting is likely to be the most acrimonious aspect of a grey divorce and, again, can be complicated, says Tremain.

“People can have their own businesses so that just makes income determination little bit more difficult,” she says. “Retirement could be on the horizon, which can complicate spousal support. Obviously, retirement is going to change someone’s ability to pay support. It’s also going to affect the person receiving support because suddenly they are not going to get as much. These are factors you wouldn’t necessarily have to consider as a 30-year-old getting a divorce.”

Tremain says pensions can be another bone of contention.

“For some, it can be quite shocking to see what their pension is worth and how much they might owe to their spouse. It can be quite difficult for people to understand and accept,” she says. “When you are equalizing, your spouse might be entitled to up to half the value of the pension. The person with the pension may want to keep it whole, but if that is the case, the parties are going to have to agree to another way to equalize the net family property.”

Decide whether the fight is worth the cost

Tremain says when it comes to assets aside from the house “people have to take a close look at what they are fighting over and whether it’s worth it.”

“Do you really want to go to court over the Christmas decorations or do they want to buy some new ones?” she asks. “Some assets may be worth at least getting a valuation for, such as a coin collection or artwork.”

Tremain says divorce at any age can be distressing, adding it is always a good idea to seek legal advice.

“It’s always unpredictable. If one person doesn’t anticipate the end of the marriage there can be bad feelings regardless of how long have you been together and it can turn into high conflict,” she says. “On the other hand, some couples realize aren’t seeing eye to eye anymore and want to do some other things with the rest of their lives, making the divorce quite amicable. 

“What happens has more to do with the individuals and their temperament in the circumstances along with the reasons for the separation. That is unique to every partnership.”

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