Divorcing in later life : Hopefully Rupert and Jerry can avoid the pitfalls facing so many elderly divorcees

The news that nonagenarian Rupert Murdoch (91) and his younger wife Jerry Hall (65) will be getting divorced led us to reflect on the rising age of divorcing couples. Despite being a billionaire tycoon, there are plenty of relatable issues and facts here that are worth considering.

Fourth time’s the charm?

The Office for National Statistics (ONS) have noted trends that the UK’s population is ageing, with people living longer and the rate of population growth being slower than in previous years. According to the recent 2021 census, 18.6% of the population are aged 65 and over. We are also seeing an increase in the average age of people getting married and in turn, whilst divorce statistics as a whole are decreasing, anecdotally the profession has seen a rise in the age of people getting divorced. Pensioner divorces are increasingly common hence their being dubbed the ‘silver separators’.

For many ‘silver separators’, this may not be their first marriage breakdown. In Rupert’s case, this is his fourth divorce and for Jerry, her first marriage was famously annulled. It’s unlikely therefore, that they entered this marriage without first protecting their assets.

To avoid any pitfalls experienced in a previous breakdown, many mature couples opt to enter into a pre or post-nuptial agreement to ensure each of their respective assets are adequately protected. A pre-nuptial agreement is entered into before marriage whereas the post-nuptial agreement is entered into after marriage. These are far more common in Europe and the US but are increasingly on the rise here.

Since the well-known case of Radmacher v Granatino [2010] UKSC 42, a precedent has been set (which has subsequently been reinforced through Law Commission Guidance), stating that the court should give weight to a nuptial agreement where it has been freely entered into, both parties have received independent legal advice and there are no prevailing circumstances which renders the nuptial agreement unfair. We are sure that many people are asking why, at 91, someone would bother to get divorced? The fact that the finances are already likely to have been sorted may be part of the answer for, if there was to be a bitter slog through the courts , surely divorce would be a far less attractive option?

The court’s approach in elderly couple cases

When considering the finances arising from the marriage, the older couple may have separate needs and interests to consider compared to those say of a family with young children. This will impact the presentation of each party’s case and what each of their ultimate goals will be. For example:

• the couple may be close to or be of retirement age. This means that job prospects may be less relevant when considering how each party will meet their own needs (housing and living costs) and the consideration instead may be on investment income, pensions and the available capital;
• a pension may be in payment which impacts the value of the overall assets available for division. Where there is an age gap such as the Murdochs, if the younger spouse is to share, it could result in one party losing income whereas the recipient of the share may not be able to access it for many years;
• both parties will also likely have the same housing need where there are no dependent children to house and so there is likely to be a similar housing need; whereas, when children are young their needs often take priority; and
• health issues will be more relevant particularly the cost of future care.

What’s yours is mine and what’s mine is yours?

We also see another trend in the Murdochs’ case. ONS have recently published that the average length of a marriage is decreasing. In 2020, the average length of a marriage was 11.9 years compared with 12.4 years in 2019.

The Murdochs have been married for 6 years. The duration of a marriage can also feed into arguments about how to divide finances on divorce. In this instance, 6 years may not be considered a long marriage but by today’s standards, nor is it short.

Absent a pre-nup, generally, the starting point is that all of the assets of the marriage should be shared equally unless it would be unfair to do so.

For the Murdochs (and those in a similar situation) the fact that the wealth had accumulated prior to marriage would ensure that the sharing principle would be disapplied. Typically, monies made during a marriage will be shared although if the money comes in from external sources such as a gift or inheritance they will not be shared unless needs require it.

What does Jerry Hall need?

One might imagine that Jerry’s needs would be met by her own wealth but having no doubt had a lavish lifestyle with Rupert this might not be the case. Her standard of living would be looked at in this country and it may well have been lavish during those 6 years and if affordable a court in this country would look to preserve it. Indeed in the recent case of IR v OR [2022] EWFC 20, the wife’s needs were calculated at close to a staggering £70million. Some would say this makes a mockery of the very term “needs” but that is the world of the super wealthy.

In Rupert’s ’s case, there is an additional layer of protection to his assets in that his companies are held in family trusts, meaning they are likely not available to be invaded within the divorce proceedings. Complex family business structures is not uncommon and we deal with plenty of cases with such set-ups. Not only does this add complexity to a divorce, but it can also have an impact on the relevant family members. Independent legal advice may need to be sought for that member. They may also want to be made a party to the proceedings.

Extended families

Another area which often makes the mature divorce more complicated are the mingling of families. If there is a divorce following on from a very long marriage then the couple may chose not to argue over division quite so much knowing that ultimately the money will be passed on to their children. For second or third marriages however the same rule doesn’t apply and often the parents come under pressure to preserve their own children’s “future inheritance”. Emotional as well as financial pressures apply and add a further layer of complexity to an already difficult situation.

Conclusion

As you can see, there are a lot of issues that could arise in the potential case of Murdoch v Hall but it may also be surprising to learn that such issues are in fact far more relatable to the average divorce than you might think.

Our Family team are highly skilled and experienced in dealing with divorce and finances of varying degrees of complexity. If you think any of these issues are applicable to you, please contact a member of our Family team.