Couples approaching retirement are reassessing marriages when most people hope to be coming into the most peaceful and stable periods of life, having built a career and brought up a family. The case of these billionaires highlights wider issues. 

It is inevitable that a wealth management publication will carry articles about the doings of Bill Gates, the Microsoft tycoon and multi-billionaire. (We wrote about the doings of his own investment firm here.) And his recent marital split from Melinda adds another twist. As with the marriage breakdown of Jeff Bezos and MacKenzie (she is now MacKenzie Scott), huge sums are involved, and there are issues such as how the ex-wives retain control over the charities and organisations they might have been involved with prior to their split. 

To discuss this divorce case is Amanda Phillips Wylds, partner at Stowe Family Law in Reading. The editors are pleased to share these views and invite reactions. Jump into the conversation! The usual editorial disclaimers apply. Email tom.burroughes@wealthbriefing.com and jackie.bennion@clearviewpublishing.com

The Bloomberg billionaires index ranks Bill Gates as the world’s fourth-richest person, with wealth totalling about $146 billion. It therefore follows that Melinda French-Gates [as she is now known] could become the world’s second-richest woman, taking a half share of their wealth and receiving a settlement estimated at $73 billion. 

Bill and Melinda did not sign a prenuptial agreement; under Washington state law, divorcing couples are expected to share their assets equally.

Aside from the fabulous wealth, one of the most interesting factors of the Gates’ divorce to me is that it follows a trend. Bill is 65, Melinda will soon be 56, their decision to divorce seems to follow the trend now established in the UK for 'silver splitters'. In all other age groups, the divorce rate is falling, but in over 65s, it is increasing. 

Couples approaching retirement are reassessing their marriages at a time when most hope to be coming into the most peaceful and stable periods of their lives, having navigated their way through a career and bringing up a family. 

There are typically two key reasons why couples consider divorce at this stage in their lives, firstly, empty nest syndrome. With their children grown up and having left home for university or the workplace, there is no longer the pressure or sense of obligation to stay together for the children. 

The second can be the unwillingness to settle and to spend the rest of what will hopefully be a long life and retirement with a partner they no longer love or share the same dreams and plans for retirement. In their statement announcing their divorce, the Gates stated that they did not “believe we can grow together as a couple in this next phase of our lives.”

Clearly, in the Gates' case, there is more than enough to go around; they will not have the financial pressures many couples divorcing in retirement face. Combined, the cost of a divorce and splitting the retirement pot accumulated can often mean a very different retirement than that envisioned. In addition, there is also the substantial emotional cost of the breakdown of a long-established relationship.

It is not surprising in the face of the substantial financial and emotional cost that many couples want to reach an agreement without the need for court proceedings. As a firm, we have seen our litigated cases drop from 81 per cent of our workload to 61 per cent, most of our clients are now instructing us to settle out of court. 

This was the second trend I was interested to see reflected in the Gates' divorce. It is reported that the couple have signed a “separation contract” agreeing on how they will divide up their assets so that they could stay out of court and keep working together as friends to lead the Gates Foundation. That sounds like quite a simple process. However, getting to the point of reaching an agreement on the terms of the “separation contract” will not have been easy. It is widely known that the Gates have promised to donate at least half of their wealth via the Giving Pledge, but they have substantial joint assets including sizeable properties in Washington, California, Florida, Wyoming and Massachusetts, and overseas, a considerable art and book collection and a fleet of luxury cars. Deciding how to carve all that up fairly would have been a complex exercise with many commercial considerations.

To agree on the terms of the “separation contract,” the Gates used lawyers for their negotiations. This a fairly traditional means of reaching an agreement. Proceeding in this way allowed them to keep matters private, which would have been an important consideration for a high-profile couple, such as they are. 

I also thought it was a smart move as it allowed them to keep news of their separation out of the media until they were ready to announce it. This meant that their negotiations were free from unhelpful diversions and speculations publicly and privately.  

There are also other options available to avoid ending up in court and to keep matters private:

Mediation
Mediators who help resolve family disputes are usually qualified family lawyers themselves. However, their role is not to give legal advice, rather help to resolve disputes and find some common ground. They are completely neutral and will not take sides. Their role is to manage the negotiations. 

Collaborative process
Using the collaborative process means that each person appoints their own collaboratively trained lawyers. Settlement discussions then take place at face-to-face meetings which the couple and lawyers attend. At the outset, lawyers would consider whether or not it might be beneficial to get any third parties involved, for example, a family consultant, a pension expert or an accountant to value business assets or calculate tax burdens. 

Arbitration
Since February 2012, it has been possible to resolve family financial disputes by way of arbitration. The scheme is run by the Institute of Family Law Arbitrators (IFLA). Arbitration can only be used if both parties agree. The arbitrator is agreed between the couple, or alternatively, IFLA may appoint an arbitrator on their behalf. The arbitrator’s decision is final and binding on the parties, so you come out of the process with a definite outcome. 

Early Neutral Evaluation (ENE)
In an early neutral evaluation, the neutral will often be a senior barrister, retired judge or Queen's Counsel. They will hear each person’s case and then state their view on the likely outcome at court. That view is without prejudice and is not legally binding. 

It should be said that those are all voluntary options, and if the other person won’t agree to use them or won’t sensibly negotiate unfortunately court is likely to be the only option. 

It looks as though the Gates will avoid court as it is reported that neither intends to challenge the “separation contract.” It is probably a big relief to Bill that he will keep litigation surrounding the end of his marriage out of the media spotlight. 

Especially given the extensive work it appears he must do to rebuild his personal brand in light of all the speculation in the media as to the reasons behind the breakdown of the marriage.