Yes, there is a lot you can do to help.
It’s often a shock to their children and families, but sometimes older people decide to end their marriages, even if they’ve lasted for decades. Advancing years can bring an uncomfortable awareness that time is running out. Their children have grown up, left home and started families of their own. Perhaps they and their spouse have little left to say to each other and the older person have begun to dream of some precious alone time and freedom in their twilight years – but if they want a chance to savour those good things, they are going to need to make some big changes while they still can.
That all sounds fine in theory but one problem encountered by older would-be divorcees is the complexity of the process. There are detailed forms to fill in, and complex financial decisions to be made. Divorce can be a daunting undertaking for younger people, but for many people over retirement age it can seem like a mountain. Older people often struggle with complexity: new things are harder to learn and memories harder to retain.
But having supportive children on hand to help can make all the difference: provide a reassuring presence and help your parents navigate the complexities and formalities of divorce.
So here is our advice: conduct some initial research and then outline the basics to your mother. If she has memory problems, encourage her to make as many notes as she needs. But you may still need to prompt her to check the notes and reread whenever necessary. This is something of a double bind: notes don’t help if you forget to read them!
You can also sit with her and help to fill out the forms, do the sums and gather the necessary information when the time comes. Another valuable, supportive role you can fulfil is acting as an intermediary with your Mum’s solicitor. Before he or she and can act on your mother’s behalf, they will need explicit instructions from her, but you can still provide clarity, explanations and moral support whenever needed.
These days, divorce is a largely bureaucratic process. A succession of forms need to be completed and declarations made, but this can be generally be done independently without a solicitor. An elderly person may still need assistance in navigating this process – and of course, family solicitors will help in those circumstances. But your Mum may not need this if you can step up and help her guide her through.
But there is more to divorce than the legal process of ending a marriage. The finances and the division of assets are all-important too, and this is where legal advice can really pay its way. An expert family solicitor will help ensure your mother gets her fair share of the marital assets – something that is especially important for someone who is no longer able to earn a salary. So, if your mother does not already have a solicitor, help her find one as soon as you can – you’ll be doing her a big favour.
No matter how keen your mother may be to end her marriage, the process is bound to dredge up some difficult emotions and doubts from time to time. Be prepared for those, and while providing reassurance and a sympathetic ear, help her clarify her thoughts. How real are any doubts she may be expressing? Does she really want to abandon the divorce or this simply a bad moment that will pass, a temporary crisis perhaps brought on by a foggy memory? Help steer your Mum back to reality so she feels able to make the best decision.
Becoming a litigation friend
There is an important legal barrier between the typical memory problems of an older person and impairment significant enough to mean they are no longer able to look after her own affairs or make decisions about her own welfare, perhaps due to dementia, Alzheimer’s Disease or similar condition. Lawyers refer to this medically diagnosed state as a lack of ‘capacity’.
If a person who does lack capacity becomes involved in a legal process such as divorce, they will require a ‘litigation friend’ to act on their behalf. This is an officially appointed representative – often a family member or close friend. In some instances, if a vulnerable person has nobody willing or able to act as their litigation friend, the courts may appoint a litigation friend for them, to act as their representative and protect their best interests. This may be a lawyer from the Office for the Official Solicitor, but do note that you will need to pay his or her costs, and you will also need to provide proof that the person in question has been medically diagnosed.