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There has been a disproportionately large increase in the number of people divorcing later in life. These are the so-called “silver splitters” and the rate of divorce among people over the age of 60 in England and Wales (which has been rising since the 1990’s) hit a 40 year high in 2013 according to the Office of National Statistics. Reasons for this include: increasing longevity plus enhanced expectations as to the qualitative nature of those extra years.

Coupled with this there has been a corresponding increase in the number of second marriages for this group and ‘silver-surfing’ combined with social media such as Facebook etc have played their part in rekindling first loves and re-uniting old childhood sweethearts. These later alliances have also seen a natural caution in exposing “new” families with the ability to make a claim on those assets that have been accrued from earlier inheritances and earlier marriages which were previously destined for the children and grandchildren of those earlier marriages.

What does a Pre-Nuptial Agreement do?

To “ring fence” pre-existing assets for their own offspring, more individuals entering into later life relationships are signing Pre-Nuptial Agreements. These act to protect assets acquired by both spouses prior to their later marriage and contain detailed provision as to what each spouse will be entitled to upon a settlement in the event that this later marriage breaks down.  Pre-Nuptial Agreements, whilst they do not come with a guarantee, are increasingly holding sway in the event of a later divorce.

Whether or not a Pre-Nuptial Agreement will be followed by a Divorce Court, is going to very much depend upon both how it was entered into in the first instance and also, upon the reasonableness of the provision which it contains and the financial detail for each spouse which it sets out.  Skilled legal assistance and drafting is key to this and meeting the “reasonableness test” that the Court would apply in determining whether or not the parties should be bound by the terms.

To be clear in this regard, a Court is not bound to follow the terms of a Pre-Nuptial Agreement, but it will not disregard its terms if it is appropriately drafted with reference to all the circumstances at the time of the parties union and which makes clear provision for those eventualities that might arise thereafter.

Where there is no Pre-Nuptial Agreement at all, then the starting point of any Divorce Court will be a straightforward and equal division of all the assets of the marriage between the parties which may be a long way removed from the wishes of the silver divorcee.

Care needs to be taken however not only with reference to what might happen to the assets of a second marriage upon a divorce, but also with reference to death and it only takes one look at the bitter after-taste left following the dispute reported in the media concerning Lynda Bellingham’s estate to emphasise that point. As such the well affianced would also be well advised to make clear provision for their estates in the event of death by means of careful Will drafting and estate planning.

It is not just the ageing romantics who may wish to have a care about these matters as Cheryl Cole’s recent divorce has also shown.  She too could have protected her significantly larger assets in the event that a Pre-Nuptial Agreement had been entered into.

Also worth bearing in mind is that if you are too swept away by romance to enter into a Pre-Nuptial Agreement prior to the marriage itself, it is still possible to enter into a Post-Nuptial Agreement (which seeks to put the same safeguarding measures in place) after a marriage has already occurred.

Is living in sin a better option?!

Whilst many entering into new relationships later in life seek to avoid the potential future pitfalls of marriage altogether by simply living together, that is not an entirely risk free situation either – and again there has been a 40% increase in over 65’s living together according to the ONS. In this regard the home in which the couple reside and which may well be owned by one party alone, can still be subject to claim by the non-owning co-habitee in the event of a separation. Given that property disputes of this type are all about “intention” well drafted Cohabitation Agreements remove any doubt about that and most certainly will be given full regard by any later Court. In this respect it is difficult to argue what the parties intended when they have set it out in “black and white”.

Nicola Fraser, Senior Associate

To speak to our expert Family Matrimonial Team about a Pre-Nuptial, Post Nuptial or Cohabitation Agreement or indeed any other family matter please contact us on 0343 507 5151 or e-mail enquiries@gorvins.com.