The first working day in January is commonly known as Divorce Day, when family lawyers receive more enquiries than at any other time of the year, but they are more likely to be faced with ‘silver splitters’ than young couples these days.

Figures from the Office for National Statistics show that, despite the recent rise in the number of marriages, divorce rates have fallen to their lowest level for 40 years: 114,720 couples divorced in England and Wales in 2013, down almost three per cent on the previous year. The statistics also show that marriages are more likely to survive the ‘seven year itch’, with divorce rates at the eight year mark nudging down by one per cent.

But for older people, it’s a different picture. Over 60,000 people who divorced in England and Wales in 2013 were over 50, a rise of 11 per cent.

Alongside the slow-down in divorce for younger couples, the Law Society has reported a rise in enquiries for pre-nuptial agreements, with commentators suggesting it’s being driven by parents who are investing in housing to enable their children to get on the property ladder, but wishing to protect family money against any future marriage breakdown.  

Older couples may have less to worry about in relation to the impact of divorce on children, but dividing finances will probably cause more concern, as they are more likely to be asset-rich and with valuable pensions.

Recent figures from the family charity Resolution show that the majority of young people felt that it was better their parents divorced than stayed together unhappily, but they also wanted to be part of the decision-making process and have their views taken into account. 

It’s a hard decision at any time of the year and at any stage of marriage, but perhaps the most important thing for any couple is to consider children first and to avoid finger pointing as they go through the process. Collaboration and mediation can help to focus on achieving an outcome through positive negotiation. It may be necessary to set out unreasonable behaviour in the divorce petition, but when it comes to dividing up the family finances, the courts are generally not interested in the cause of the breakdown of the marriage or a spouse's behaviour.

The exception to this is when family law judges are obliged to take into account 'gross and obvious' conduct that 'in the opinion of the Court would be inequitable to disregard'. Recent cases that have put the spotlight on conduct include Vaughan v Vaughan in 2007, where the Court added back sums spent recklessly by the husband on gambling after the couple separated. This was reinforced more recently in US v SR (2014) when the High Court held that when a spouse has recklessly disposed of assets after separation they cannot claim as great a share of what remains, if there is clear evidence of so-called ‘wanton dissipation’. 

This requirement was further spelt out in the 2015 case of MAP v MFP, where the husband had become addicted to cocaine and, despite rehabilitation, often relapsed. The wife argued that £1.5 million should be added back as a result of the husband's reckless and wanton expenditure on cocaine, prostitutes, alcohol and therapy after their separation, but the judge disagreed, saying that while the expenditure may have been morally culpable and irresponsible, it had not been deliberate or wanton dissipation.