While separation and divorce are still more common in the younger population, the percentage of older individuals choosing to separate has been increasing. Seniors separating, or “grey divorce” as it is also called, encompasses those who are 55+ and are either separating from life-long partners or from subsequent partners after re-marrying.

Generally, the same issues regarding spousal support and property division arise in grey divorce; however, the issues may be treated differently when the parties are older individuals who are close to retirement. This is mainly due to the fact that the ability to become self-sufficient decreases as an individual ages and entitlement to spousal support and/or asset division strengthens. One such example is the issue of excluded property. Excluded property is defined in the Family Law Act (“FLA”) as any property that an individual owns in their sole name at the start of the relationship. Upon the breakdown of the relationship, individuals may keep their excluded property if they can prove that the exclusion still exists by tracing the excluded property to some currently owned property. However, where the parties are older and retired, parties sometimes have a harder time proving their excluded property claims if they have transferred property into joint names. Even if they are able to prove their claim, the courts may still divide the excluded property if they deem it would be significantly unfair not to.

Thus, although the FLA recognises that individuals may have assets they do not intend to divide in case of relationship break down (“excluded property”), transfers of interest into joint ownership with a new spouse could very well result in a loss of claim to such excluded property. In other words, a family cabin or boat that was once intended for an individual’s adult child(ren) may become a family asset that is to be divided between an individual and their soon to be ex-partner. This is especially true in instances where there is a strong spousal support claim that cannot be met through spousal support alone and so re-apportionment of family property and assets is granted instead.

There are many reasons why older individuals choose to separate. Some couples simply grow apart, especially once children leave the home. Interestingly, human longevity has played a role as well, as those in unhappy relationships see the long years ahead and decide they no longer wish to live in unfulfilling relationships. Historically, financial dependence forced women to stay married in unhappy or even abusive relationships. Women’s financial emancipation has given them the freedom to divorce, move away, and start over. Another reason older individuals may choose to separate is to financially protect themselves and their assets when their partner turns to unhealthy or dangerous habits such as gambling or drug abuse.

Individuals who are older and are entering into subsequent relationships – whether marriage or common law – are strongly encouraged to have a marriage/cohabitation agreement in place to ensure that their rights are protected should the new relationship end. At the least, individuals should seek independent legal advice to canvass their options and risks in order to make informed decisions about their future.

This article does not provide legal advice and the information should not be taken as such. For proper legal advice and current information about the law, you must speak to a lawyer.