What is the rule of 65 in divorce?
Pursuant to the Spousal Support Advisory Guidelines (SSAG) when a spouse separates, if their age at the date of separation plus the number of years they have cohabitated equals 65 or over they are entitled to receive spousal maintenance for an indefinite period of time. If their age and the number of years is less than 65 the SSAG sets out a range for the duration of spousal maintenance which usually ranges from half the number of years they resided together to the a number equaling the length of the relationship or if there are dependent children, the number of years until the youngest child finishes high school, whichever is greater.
If spousal maintenance is to be paid for an indefinite period of time this does not necessarily mean that it is an “indefinite” obligation.
The case law states that spousal maintenance will be reviewable if there is a material change in the circumstances of either party which was unforeseeable as of the date of the spousal maintenance order.
The new Family Law Act at section 168 states that:
Division 4 — Spousal Support
Section 168
(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for
(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,
(b) the type of family dispute resolution by which the review will take place,
(c) the grounds on which a review will be permitted, and
(d) the matters to be considered for the purposes of a review.
(2) On review, a court, on application, may do one or more of the following:
(a) confirm an agreement or order respecting spousal support;
(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;
(c) make an order under section 165 [orders respecting spousal support].
(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support].1
In agreements we often define when spousal maintenance will end and when it will be reviewable. For example, spousal maintenance usually will end on the occurrence of the first of following events:
- Varied or terminated by further agreement or Court order;
- the recipient dies;
- the recipient finds permanent full-time employment providing a net income in an amount equal to or greater than the maintenance payable.
Spousal maintenance is often reviewable when:
- The payor retires, with the review to consider the decrease in the payor’s income;
- The recipient obtains employment, with the review to consider the increase in the recipient ‘s income;
- The recipient marries or commences residing in a spousal relationship with another person for at least 90 days, with the review to consider the recipient ‘s potentially decreased need for support arising out of his or her sharing of expenses with another person in a spousal relationship.
If the spousal maintenance obligation is intended to continue beyond the death of the payor spouse it is important to ensure that there is life insurance in place to pay the spousal maintenance or to state that the spousal maintenance obligation is a binding obligation of the estate of the payor spouse. Life insurance is usually the preferable option as the payor spouse may die without an estate or with an estate which is not large enough to continue to pay spousal maintenance for the life of the recipient.
1Family Law Act, [SBC 2011] CHAPTER 25
www.bclaws.ca/civix/document/id/complete/statreg/11025_01
For more information on what is the rule of 65 in divorce and spousal support agreements in Victoria, BC, contact Deborah Todd Law.
