Silver Splitters and Silver Linings?

What the data tells us we should be thinking about

Surrey Resolution AGM Seminar
6 November 2014

It is difficult, if not impossible, to predict at the outset what the circumstances will be
when a marriage ends. It is even more difficult to predict what the fair outcome of the
couple's financial relationship will be…An older couple who marry a second time
round may think it fair at the time to preserve their assets for the sake of the children
of their first marriages, but may find that one has to become a carer for the other and
will be left homeless and in reduced circumstances if the grown-up children take
priority even though they are now well established in life and have no pressing need
of their inheritance.

(Baroness Hale, dissenting, in Radmacher v Granatino [2010] 2 FLR 1900).

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Introduction
1. The demographic of the client base is changing. There are several factors:

a. Increased life expectancy.

b. “Empty nest syndrome” and “under the feet syndrome”.
c. Changing attitudes to marriage and remarriage.
d. Changing attitudes to divorce.

2. This part of the seminar will set out some (hopefully) interesting statistical and
other data which touches on these points, and will help us better understand
that the divorce market is changing.

3. One key change is the rise in second marriages later in life. As people remarry
later and later, the following three issues in particular become more prevalent:

a. The existence of previous children - historically, divorced women with

children were less likely to remarry than divorced women without.
b. The accrual of wealth – note in particular the prevalence (post-White)
of women remarrying who have received in the 21 st century divorce
awards that would have been unthinkable in the 20th.
c. The recognition of the very possibility of divorce – not least by people
who have been, or know someone who has been, themselves divorced.
d. Is there a changing attitude between the sexes?

TABLE 1: WHO IS ASKING TO GET DIVORCED?

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What does the data tell us?
4. Understanding this chart tells us a huge amount about how the market is
changing.

TABLE 2: NUMBER OF MARRIAGES AND DIVORCES 1931-2011

5. Note in particular:

a. What happened to marriage and divorce in the Second World War.

b. What happened as the children born as a result of many of those
marriages reached their mid-20’s.
c. The rate of marriage has declined at a significantly faster rate than the
rate of divorce.
d. Fewer marriages certainly mean fewer divorces, but fewer marriages
amongst younger people means that the average age of the person
going through divorce rises.

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The data on divorce
6. It is worth looking more closely at the recent trends in divorce:

TABLE 3: HOW CHANGES IN THE LAW AFFECT THE DIVORCE RATES

7. Two interesting questions:

a. Was White v White responsible for the sudden rise in divorce after
2000? Was it also responsible for the even more sudden fall a few
years later?
b. Has Radmacher v Granatino led to a significant change in people now
seeking pre-nuptial agreements?

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The ages of those divorcing
8. Some extreme examples of divorce amongst the elderly:

a. The world record for combined age on divorce was H (99) and W (96),
an Italian couple. In 2011, H found some love letters that W had kept
from an affair she had had in the 1940’s. H was so incensed that he
petitioned for divorce.
b. The UK record is held by Mr and Mrs Booth, both 98 at the time of
decree absolute in 2013. Their grounds for divorce were not made
public.
c. The oldest person ever to get divorced was Mr Harry Bidwell (101)
who secured a divorce from his 65 year old wife in 1980.

9. The single largest group of divorcees by age are 40-45:

TABLE 4: THE CURRENT AVERAGE AGE OF DIVORCE

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10. The most likely time to for a couple divorce is after 7 years of marriage:

TABLE 5: LENGTH OF MARRIAGE vs CHANCE OF DIVORCE

11. It looks as if Marilyn Monroe was on to something:

(Source: imdb.com)

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Changes in the age of divorce and remarriage
12. But note how that has changed over time:

TABLE 6: CHANGES IN THE AVERAGE AGE OF DIVORCE

Length of
Year Husband Wife marriage
2011 44.1 41.8 11.5
2001 40.0 37.7 10.9
1991 37.0 34.3 9.8
1981 35.4 33.2 10.1

13. The average age of marriage is rising. But note in particular the average age of
those people who are remarrying:

TABLE 7: WHEN DO PEOPLE GET RE-MARRIED?

MEN WOMEN
Year Total Single Divorced Widowed Total Single Divorced Widowed
2011 36.3 32.2 47.6 62.4 33.8 30.2 44.4 56.5
2001 34.8 30.6 43.5 61.0 32.2 28.4 40.4 55.2
1991 31.6 27.5 40.3 60.5 29.1 25.5 37.1 55.1
1981 29.6 25.4 38.1 59.4 26.9 23.1 35.1 54.2

TABLE 8: WHO IS MARRYING WHOM?

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The silver lining – two couples
14. Here are Ted Parsons (98) and Jean Reed (90), the oldest couple (by combined
age) ever to marry in England, who married in 2013:

Ted: “If I had gone down on one knee, I would have needed help getting up!”
(Source: express.co.uk: 4.10.13)

15. And the record for the longest currently surviving marriage in the world: Mr
and Mr Chand, of Bradford, who married in 1925 (89 years – and prior to the
Law of Property Act 1925 coming into force).

(Source: Asian Express: 6.1.14)

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Overall summary
16. Attitudes to marriage have changed in England, as have attitudes to divorce.
But, of course, the changing rates of marriage mean that the make-up of the
clients coming in for divorce has changed. They are on average significantly
older, and come in with increasingly positive attitudes to life beyond divorce.

17. As second marriages become more prevalent, and take place later in life, the
prenuptial agreement becomes increasingly relevant, particularly in allowing
parties to exercise more autonomy over assets which are more likely already to
have built up. As Jonathan Tod sets out in his note, although it is perfectly
possible to contract out of the sharing principle, and (particularly given recent
authority) to contract out of the compensation principle, one can never
contract out of needs.

18. In particular, practitioners must give proper thought to issues of:

a. Life expectancy.
b. Capital needs – in particular the use of the life interest.
c. Income needs, but note future costs of care / care home fees.
d. Ensuring that adult children are made aware of the terms of any
agreement so as to avoid unpleasant familial litigation after death. This
is too often overlooked.

MAX LEWIS
29 Bedford Row Chambers
6 November 2014

(Unless specifically credited, all graphics/data are the copyright of the Office for National Statistics).