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Divorce is a stressful and overwhelming process. Family law litigants are often introduced to confusing new concepts and terminology, which can feel like you are learning a new language.
If you are in the process of getting divorced, you’ve likely heard your lawyers refer to the “Rule of 65” – and may be wondering what this means. In this blog, we’ll explain this term and some of the other common terms used in spousal support cases.
Understanding the Rule of 65 and the Broader Context
The rule of 65, put simply, is a factor in determining how long spousal support should be paid. The rule establishes that if the duration of the marriage plus the age of the recipient equals or exceeds 65, then spousal support may be ordered indefinitely.
By way of example, if you and your partner get married when you are 30, and you separate 20 years later, then at the time of the separation, you are 50 years old. In this example, you would qualify for the rule of 65, because your age plus the length of the marriage exceeds 65 (50 + 20 = 70). Likewise, if you marry at 50 and are married for 10 years, you still qualify (60 + 10 = 70). However, if you marry at 30 and are married for 10 years, you do not qualify as your age combined with the length of the marriage is less than 65 (40 + 10 = 50).
The impact of this rule is how long support is awarded for, i.e., if it will be paid for a time-limited period or an indefinite period. If you are given indefinite support, this does not mean that spousal support will last forever, but it does mean that the Order may not include an end date, and it will be up to the parties to stop spousal support at a later date.
At its core, the Rule of 65 speaks to the question of how long support will be paid.
To understand the impact of Rule 65, it’s important to back up and distinguish between the three prongs of spousal support: entitlement, quantum, and duration.
Entitlement
Entitlement to spousal support is what family lawyers often refer to as the threshold issue. At this stage, the question is whether or not the recipient should be given spousal support at all.
In family law, there are generally two ways of establishing entitlement: compensatory or needs-based (often called non-compensatory).
Compensatory support is meant to address the economic loss or disadvantages to the recipient that resulted from the marriage. Typically, these are cases where one party has taken on a homemaker and caregiver role during the marriage and has lost out on professional and economic growth because of that role.
Needs-based support, on the other hand, is meant to assist a recipient spouse when the lack of support would result in a significant decline in the recipient’s standard of living from the standard established during the marriage. This type of support is meant to address the economic interdependence that arose during a marriage and to ensure the recipient’s standard of living does not significantly drop post-separation.
Quantum
Once entitlement to support has been established, the question remains how much support is owed, and how long support should be paid for: these concepts are referred to as quantum and duration.
Quantum is determined primarily by reference to the income of the parties and the length of the relationship. While not mandatory, quantum is usually decided by reference to the Spousal Support Advisory Guidelines, which offer suggested ranges for quantum and duration.
Duration
Quantum and duration go hand in hand, and quantum is determined in relation to duration. Duration is how many years spousal support should be payable. Ultimately, duration is the end of entitlement. Generally speaking, the longer the relationship, the longer the entitlement period, meaning the longer the duration of support.
Spousal Support and the Rule of 65
So how does the Rule of 65 tie into all of this? Well, if the Rule of 65 applies, the duration of spousal support may be ordered indefinitely. This means that if you qualify for the Rule of 65, then your support order may not mention an end date for entitlement to spousal support, or the duration. Under these circumstances, the person paying support would need to apply to terminate it, as opposed to it ending after a fixed period.
Exceptions to the Rule
While the Rule of 65 is a general guideline, it is not absolute. As mentioned above, this rule contemplates that spousal support may be ordered indefinitely, however, judges are not bound by the Rule of 65 and could still order time-limited support.
Likewise, there are exceptions where indefinite spousal support is awarded even when the Rule of 65 is not met. These exceptions include but are not limited to cases involving physical or mental disabilities, dependency, or financial hardship.
Conclusion
The Rule of 65 is fundamentally about duration. If you are in a long-term marriage, or separated at an older age, then it’s important to keep this principle in mind when considering your entitlement to support.
By seeking legal advice, individuals can ensure their rights are protected, and work towards resolving family law matters in a fair and equitable manner.
At Lerners, we understand the delicate nature of domestic and family-related legal decisions and appreciate the emotional toll they can have on those involved. Our team, located in Southwestern Ontario and Toronto, will work tirelessly to protect your interests and achieve the best possible outcome to get the closure you deserve. With a successful track record that includes some of Canada's most complex family law cases, we dedicate ourselves to achieving results and helping you move forward with your life. Contact us today to see how we can help.
