Alternatives to divorce for older couples

In recent years, there has been a 28% fall in the number of divorces. However, older couples appear to be bucking the trend with the number of men divorcing aged 65 and over increasing by 23% and women of the same age up by 38%. Dealing with a divorce in your younger years is hard enough, but doing it at 70, or even older, can be devastating. Particularly if the person you are divorcing or who is divorcing you is your carer or principal support.

If you are experiencing issues with your relationship and you feel you need legal advice to resolve matters, contact specialist family solicitor Maria Coster of Stowe Family Law. Maria has an excellent record in family law matters as well as being involved in a number of complex cases involving issues such as domestic violence, substance misuse, and parental alienation.

The financial and emotional impact of divorce on an older couple can be complicated. After being married for so long, finances are tightly bound together, and they may be used to having another person around to care for them. This is why so many older couples decide not to divorce and try alternatives instead.

In this article, we discuss alternatives to divorce for older couples so you can decide whether there may be a better option for you and your relationship.

Legal Separation and Separation Agreements

If divorce is not something you can contemplate, you have the option of separating. Although both of you will still be married to one another, you will be able to live separately, and maintain separate lives. The main issue here, is that property and assets are still usually classed as being jointly owned or matrimonial assets. But there are several options: separation or post-nuptial agreements, or applying to the court for a legal separation can offer a solution to the issue of divorce.

A separation agreement does not offer the benefit of court scrutiny of a couple’s individual and joint financial position, but for some, this is an advantage. The document formally records how living arrangements will be managed and what is to happen with the marital assets. A further advantage is that it gives both parties a clear explanation as to how the separation will operate from a financial and ongoing communication perspective. This is especially relevant for couples that don’t want the drama of divorce, or who can’t afford to live separately in their older years.

If you wish to put your separation on a more legal footing, you have the option of legal separation. This allows you to separate without divorcing and is a popular alternative to divorce when you wish to establish financial boundaries and responsibilities, such as separation of assets or property.

What is the difference between separation and a legal separation?

A legal separation is as serious as a divorce because both are orders of the court and contain responsibilities and obligations that each party must legally uphold. If the couple later decides to divorce, the court may take the details of the legal separation into account when ruling on the divorce settlement. A legal separation includes:

  • A court-ordered agreement where a married couple live separately, usually, but not always, living apart
  • Specifics of financial obligations

Legally separated couples may also be entitled to certain benefits whilst separated couples, particularly if they remain living under the same roof, may not.

Does legal separation have the same effect as entering into a separation agreement?

A legal separation is a formal process that must go through the court, whilst a separation agreement is an informal agreement made between a couple, setting out the division of property and assets. In addition, a separation agreement can be completed whether or not the parties are married, but you cannot get a legal separation if you are only cohabiting.

A separation agreement is not legally binding; however, a legal separation is regularised by the court, and cannot be contested by the other party. On the other hand, no one is forced to sign a separation agreement or agree to its contents.

Post-nuptial Agreements

By entering into a post-nuptial agreement, you can agree the division of your matrimonial assets without getting divorced. A post-nup gives a couple clarity about their rights and what may happen if their relationship ended. Often, post-nups are used by individuals considering getting divorced, but wanting to continue working on their relationship knowing what their financial rights are. This option may suit older couples who wish to remain supporting one another in the same home without divorcing, and allows this new circumstance to be recognised.


Changing your Will after separation

Making or updating your will may not be high on your list of priorities when you are going through a traumatic separation, but it is something you need to do if you want to make sure your assets do not unintentionally go to your spouse when you die.

If your marriage is long-standing, then you may have entered into mirror wills. This is where a couple leaves their entire estate to the other. If you separate, whether legally or more informally, you may no longer want this to happen.

If you already have a will, but do not get around to updating it while you are separated, the terms of the will remain in operation. This means that any gifts to your spouse, or appointing them as your executor, remain valid, and is the case even if you have been separated many years. As soon as you separate, you should update your will to reflect the change in your wishes.

If you die intestate, without making a will, then the rules of intestacy dictate who will inherit your estate. The rules state that if you are married with no children, your spouse will receive the entirety of your estate. Whereas, if you have children, even if they are now adults, your spouse will receive the initial £270,000 of your estate and half its remaining value. The other half will be passed in equal shares to your children, providing they are over the age of 18.

It is worth noting that any jointly owned property held as joint tenants will automatically pass to the surviving owner. Ownership can be changed to tenants in common, which allows each owner to leave their share of the property to whoever they desire.

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