The wear and tear of raising children, unmet personal challenges, the end of love, routine, increasing life expectancy or the progressive destruction of the myth of romantic love are just some of the factors that lead to a new trend in terms of divorce and separation: divorce in old age or ‘golden years’. This type of breakup is also known as ‘gray divorce’. More and more elderly couples decide to end their relationship to start a new stage in their lives, something that, for women, has a lot to do with self-realization after having dedicated long years of their lives to caring for their partner and children.
In the case of men, the motivations tend to be different: the loss of the spark, the search for adventure and even sex are on the list of reasons usually given by this group when it comes to saying goodbye to their partners.
All in all, every couple is different, but certain trends run through all these decisions: it is increasingly clear to us that marital unions do not have to be ‘for life’ if the necessary spaces are not given to be able to grow and be happy within this nucleus.
And, although ’till death do us part’ is still an aspiration for many, we know that not everything goes when it comes to achieving this goal.
Data on the number of divorces in the elderly in Spain
The result is an increase in the number of cases of separation and divorce among couples in their 50s and 60s and older.
A determining factor in this regard is the arrival of retirement, a new situation that forces the couple to spend more time together and can lead to conflicts and the feeling of having grown apart.
This is why many people feel they do not know their partners despite having spent many years building a common project.
The data do not lie: the dissolutions of marriages whose spouses have already reached the age of 65 doubled between 2001 and 2011, an increase of 144 percent, and this trend continues to rise. Moreover, although this age group is not the most representative (most divorces occur earlier), it is the one that is experiencing the greatest increase.
So much so that the average age of divorce in Spain continues to rise and now reaches 49 years.
Here are some curious facts about this trend:
- Men are more likely to go back to looking for a partner with ‘someone to take care of them’ in mind, while women are more likely to seek alone time and self-fulfillment.
- Our elders begin to belong to a generation in which divorce was normalized in Spain, after its approval in 1981.
Therefore, cultural factors feed this tendency not to put up with it when it is not necessary. - The increase in life expectancy also has a lot to do with this trend.
In Spain it stands at 82.29 years.
That is why we are considering turning our lives around before it is too late. - According to a report prepared by the Imserso, late divorces occur shortly after retirement.
In the 65 to 69 age group, they account for 5.45 percent of the total, while in the 85 to 89 age group they do not reach 1 percent.
Age and time of life matter. - Divorce in old age also has to do with children leaving home or empty nest syndrome.
Delaying the age at which we become parents leads us to say goodbye to our offspring later and later in life.
How does divorce work in the elderly?
The truth is that divorce in old age (or the so-called ‘golden years’) is no different from divorce at any other age in terms of the legal rules that apply. The law works the same for everyone, regardless of age.
What is true is that the challenges change and the measures that need to be adopted are usually more economic and not so much related to the custody of the children or the payment of pensions in favor of them, since they are usually already in adulthood and can meet their own expenses.
Below we answer some frequently asked questions about divorce in old age.
What type of divorce is best for me?
If you are wondering what type of divorce is best for the couple, the universal answer is divorce by mutual consent.
Moreover, this decision, when it comes so late in life, is likely to be the result of consensus, and both parties are likely to have the maturity and assertiveness to make a plan together.
The advantages of an amicable divorce in old age are many:
- You will be able to carry out the procedure with only one lawyer (with the consequent saving of time and money).
- You will take control of the situation (avoiding having a judge decide for you).
- You will be able to close your relationship in a healthier and more mature way, putting an end to the marriage without quarrels.
- If you have children, you will be setting a good example for them and setting a positive precedent that they can use as an example in managing their personal relationships.
What to consider before separating?
First of all, we must assess whether we are really sure we want to end the relationship.
Before taking the step of getting divorced, many couples choose to separate (either legally or simply by ceasing to live together) for a period of time to ‘test’ the new situation and, sometimes, to seek a reconciliation.
If we are clear, whatever the chosen formula, you should look for a lawyer specialized in divorce to help you in this process, preferably jointly.
Also keep in mind that this path will have an economic and emotional cost that will be much lower the simpler the agreement is.
It is always a good idea to bring clear ideas to your appointment with the lawyer: in many occasions the divorce can be simple and the economic or any other kind of measures are negotiated in a natural way.
This would be the ideal scenario, since the only thing left to do is to give legal form to your agreement and validate it, either before a notary or judicially.
Logically, things are easier when there is economic equality in the couple, something that is less frequent in this type of divorce.
Who gets the house in a divorce with older children?
A very recurrent point of friction is usually what happens with the family home when a divorce occurs.
The presence of children who are still dependent greatly compromises this type of judicial decisions, since it is usual that the right to use the home is granted to the custodial parent (when single-parent custody is chosen).
In these cases, given that the children will normally be older, only economic elements related exclusively to the couple will be taken into account. In this regard, you should know that the right of use of the home can be granted for a period of time to that part of the couple most economically harmed by the breakup.
This possibility also exists in the third age, especially if one of them has scarce resources and null probability of incorporating to the labor world . If this happens, the other spouse will have to look for another place to live.
Also, keep in mind that the Civil Code of Catalonia allows that, before the temporary use of the family home is exhausted, an extension can be requested if circumstances make it advisable.
When both parts are in equal conditions in the economic plane, the habitual thing is to sell the housing to finish with the co-ownership and to allow to each part to have sufficient liquidity with which to cover its vital expenses.
In any case, it is possible to agree a right of use for life in favor of one of the parts that is not based on economic motives nor in any of the causes that the law gathers, like form of distribution of goods and rights after the rupture.
If this occurs, what has been agreed must be respected in any case and, if the property is sold, the injured party must be compensated.
Divorce in old age and indefinite compensatory allowance
The so-called compensatory pension or compensatory benefit refers to the amount that one of the spouses receives from the other in the event that the separation or divorce has produced a situation of economic imbalance in relation to the position of the other. That is to say, that economically his or her situation has worsened with respect to the one he or she had during the marriage.
This pension may consist of a temporary pension, for an indefinite period, or a single benefit, and will be determined either in the regulatory agreement or by judgment.
It is an extension of the matrimonial solidarity after the breakup, and its goal is none other than to try to reach a balance between both spouses, improving the situation of the most disadvantaged.
It is, however, a pension that, although it can be for life in exceptional cases, it is intended to be temporary.
Precisely in the case of divorce in old age it is more frequent that compensatory benefits are agreed for life, since its concession is related to the role that each spouse has occupied in terms of the family economy.
A classic example is that of the spouse who stays at home to take care of the family and does not generate any income, thus allowing the other spouse to develop his/her work to the detriment of his/her own.
When this economic model has been maintained for decades until reaching an advanced age, where the chances of entering the labor market are slim to none for the spouse dedicated to the family, the lifetime compensatory pension becomes a viable instrument with which to balance the scales.
Specifically, the jurisprudence tells us that the permanence of the pension can only be established for an indefinite period of time when there is a real and accredited potential that the beneficiary, as a consequence of his personal circumstances (age, state of health, professional training, possibilities of acquiring public aid, etc.) and the absence of assets, will not be able to reach, in a more or less long term, that financial autonomy that he could have enjoyed if there had not been the marriage, and that would allow him to meet his needs.
Divorce in old age and widow’s/widower’s pension
Another frequent question regarding divorce in the elderly is what happens to the right to receive the widow’s or widower’s pension in the event of the death of the former spouse. In this sense, the regulations tell us that you will be able to keep your right to receive a widow’s or widower’s pension if:
- You have not remarried or entered into a domestic partnership.
- To be a creditor of a compensatory benefit and that this pension is extinguished by the death of the deceased.
Finally, keep in mind that, in case the amount of the widow’s pension is higher than the compensatory pension, the widow’s pension decreases until it reaches the amount of the compensatory benefit.
If you need help in the processing of your divorce or separation, consult our Family Lawyers.
