Marriage in later life: what are the pitfalls?

I recently listened to a morning radio programme on which three counsellors gave advice to a young girl who had written in to the show. Her father had been widowed for ten years and had met another woman nearly twenty years younger than him. His daughter was desperately worried as she thought the woman to be a gold digger who was only after her dad for his money. He didn’t recognise this to be the case and was even talking about marriage.

The counsellors told the girl to pretty much mind her own business. I didn’t think what they said would bring a great deal of comfort to her. That is because I suspect from what I heard, and from all the experience I have as a practitioner, she is probably right.

She was advised that her father might know his money is a great attraction, but if he is enjoying himself “and getting what he wants out of it” he has a right to do whatever he sees fit.

It is a shame they didn’t have a divorce lawyer on the programme, because I often see the fall-out of second marriages. Unravelling them can be difficult and painful, and I have no doubt that they are more likely to end in disaster.

So what are the pitfalls of marrying again in later life?

One of the biggest challenges is actually physically living together. The shock of adjusting after living two different ways of life can often be quite pronounced.

One party may be used to a life of solitude. They might have set routines, only like certain meals and places to eat, see certain friends and have a whole raft of bad habits. But so what? They won’t see that their life is lived in a bubble. And when that bubble finally bursts, disaster normally ensues.

I learned of one such example through a man’s close friends. They had consulted me because his wife angered them. Everyone thought he was a confirmed bachelor. He married in his late 60s for the first time after becoming besotted with a woman he met at a pensioners’ club. Not a particularly well or rich man, it seems he snored very heavily. When his new bride (by now on her third marriage) moved into his one bedroom apartment she was alleged to have relegated him to the sofa, complaining of the noise. A few months into the whirlwind marriage, having ignored all the advice of his well-meaning friends, he had a heart attack and died. She inherited his entire estate. His original will had become invalid upon marriage. His lifelong friends inherited nothing.

They had advised him strongly against marriage, but he was besotted and took a gamble. A gamble his friends argued had shortened his life.

Recently and less dramatically, I was reminded about the pitfalls of marriage late in life when reading an abbreviated version of M v W (2010) EWHC 1155. It has not yet been published in full, so we don’t know all the facts of the case. However, from the summary it seems that a man approaching 60 married in 2002 and that marriage broke down in 2004. They then reconciled and the wife became pregnant and had a child in 2005. The marriage finally broke down in 2008, but the financial arguments between the couple lasted until the case came to court this year – at which point the husband was 67-years-old.

Getting married, having a child and living together at that age must have made the marriage very difficult. I would think that by 60 the husband will have been pretty set in his ways. And how can anyone of that age be successfully expected to cope with such life changing events?

While the wife doesn’t appear to have had assets of her own; the husband’s were significant. Accumulated over 30 years they included a company that was the source of his income, two valuable properties and an estate in New Zealand. They were now all tied up in trusts. The wife and child were still beneficiaries under one of the trusts, although payment of any order the court made could only occur if the trustees consented.

They appeared to be playing ball. The court heard that the trustees acting “in the exercise of their fiduciary duties, were willing to consider the judgement and determine the distribution if any to make”. So on the assumption they would pay up, the argument appears to have been limited to a calculation as to what the pay-out would need to be in order to meet the wife’s reasonable needs. What were those needs after a shortish marriage that was punctured by breakdown and conflict throughout? I suspect that the birth of their child made a big difference to the outcome.

Mrs Justice Macur awarded a lump sum to the wife for her housing needs of £800,000, and global maintenance for her and the child of £30,000 per annum with no cut-off date. Her claims to the husband’s estate upon his death were kept open. The wife had actually sought a lump sum of £1 million for housing and £49,000 in global maintenance. The husband had offered £400,000 for housing and maintenance of £12,000 for his wife of five years and £7,500 for the child.

It would be wrong to speculate as to whether the husband thought he had been foolish to marry, and finally woke up and smelt the coffee in settling his divorce. We don’t know enough about the case.

Although this Wednesday we are finally going to discover the views of our Supreme Court judges on the legality of prenuptial agreements in Radmacher V Granatino case, I believe every older wealthy man (or woman) in such a situation needs to be careful about the prospect of their relationship being successful and take expert advice on all the options.

These include not marrying at all. Or entering into a carefully drawn cohabitation agreement including provision on death from the wealthy partner’s estate if the parties are still cohabiting, so there can be no successful challenge to the will and the rest of the family or friends can inherit what is intended for them. Inheritance should never be overlooked. An estate can be eaten up with legal costs if a will is challenged by a dependent. Accelerating inheritance payments so they are made before a second marriage is another tax effective option that could avoid future conflict.

Taking expert trust advice is also useful. If marriage is on the cards it may be too late to be of any use for English divorce law, but it is still wise to check. There are a lot of creative practitioners in this country and abroad. Pension arrangements and what happens to your pension upon death should also be considered. And regardless of the decision in the  Radmacher case, if marriage is definitely on the cards a well-drafted prenuptial agreement would still be taken into account, and a postnuptial agreement executed immediately after marriage would probably clinch it.

If the estate is worth it you may need to think internationally to protect it. English law probably doesn’t offer the best worldwide protection for you. Get expert advice on how to establish jurisdiction, residence, advice on relevant law in other countries and use all that wisdom accrued over the years to plan ahead. If all goes well, that’s great. And if it doesn’t you will still be in control.

On the other hand, carried away by love, lust, or the dreaded alternative of a lonely old age, an older prospective spouse might decide to throw caution to the wind and do none of the above. Very often they, and any first family they might have, will all live to bitterly regret it as children’s and grandchildren’s inheritances pass out of the family.

I believe the savvy young girl who wrote into the radio station certainly knew the score about her dad. In my experience the saying “there’s no fool like an old fool” is probably truer than many would like to admit.

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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