Divorce and retirement

The divorces that occur after the age of 50 are usually termed as grey divorces. This article will discuss some of the common questions one may have about getting divorced during and after middle age, and whether a divorce and support order “for life” can be varied after retirement.

Child Support

According to section 31 of the Family Law Act, each parent is obligated to provide for child support for their unmarried child who is:

• Under the age of majority;
• Attending a full-time educational program; or
• Having the inability to live an independent life owing to an illness, disability or other reasons.

Usually, after the age of 50, spouses do not have any children dependent on them financially. Therefore, unless the child in question is a minor or an adult who is a student or has an illness or a disability that renders him/her incapable of withdrawing himself/herself from the parents, there is no question of child support in matters of a divorce.

Spousal Support 

The spouses are obligated to support each other according to their own capacity to support and the needs of their souse. But the question arises, how will the spouses support each other after divorce, if both are retired?

While deciding on the issues of support, both spouses’ or one spouse’s (if only one spouse worked during the marriage) pension and difference thereof is considered to decipher the capacity of one spouse to pay while taking into account the other spouse’s needs. 

Division of Property

According to the spouses’ right to equalization of net family property, the spouse having lesser net family property compared to the other spouse, is entitled to half of their net family property’s difference.

Similarly, for division of property, both spouses have equal share in the matrimonial house. One spouse could either pay off the other spouse for half the value of the house, or they could sell the house and divide the proceeds in half. Properties other than the matrimonial house, the title of which is only held by one spouse, can be included in the claim for equalization as a constructive trust on the basis of unjust enrichment.

Can an earlier support order be changed after retirement?

In the case of Haworth v. Haworth, the Respondent was the sole earner of the house. In 1991, the Respondent and the Applicant agreed to the payment of $4,000 per month till the death of the Applicant, by the Respondent to the Applicant. This was reflected in their divorce judgment, in the same year.

After the Respondent retired, he brought a motion to get the spousal support amount decreased. The motion was ruled in his favour and the spousal support was reduced from $4,000 per month to $1 per month.

The motion judge’s decision was challenged by the Applicant. The Ontario Court of Appeal decided the following:

• The spousal support amount is to be reduced considering the material change in circumstances from the date of the support order. These material changes are that the Respondent’s income has substantially reduced at the age of 72 due to his retirement. At the time of the divorce, the Respondent was earning around $250,000 to $300,000 annually, and after retirement he was reduced to a base income of $65,000 per year.
• Holding the Respondent’s retirement as a material change in circumstances, the court reduced the amount of spousal support only to the extent required by the change in circumstances. The final amount of spousal support was ordered to be $850 per month.

Several factors are taken into consideration when a divorce order is passed. It is highly advisable to seek the professional guidance of a lawyer, who can understand and explain to you the technicalities of your case.