4 big legal considerations you need to know about grey divorce

Some people may sadly lament, but others may happily rejoice that older sentiments like ‘let’s just stick it out’ might just be on the decline. 

By Eve Dougherty, Associate at Roger Fritz LLP, Melbourne.

Regardless of your feelings, separating in your later years is likely to bring concern, especially when faced with changes to your life or retirement plans. Below, we’ve laid out some key legal factors to take into consideration, to help you get through this time – informed on your rights.

What is grey divorce? 

This is a term coined for persons divorcing in their later years. However, some couples may not have married, but when separating in their later years, may fall under the de facto provisions of the Family Law Act 1975 (Cth). 

Is it common? 

It may be more common than you think. Statistics from the 2019 Australia Bureau of Statistic (ABS) show a rate of 6.6 out of every estimated 1000 males aged 55 to 59 and 1.9 out of every estimated 1000 males aged 65 and older divorced. 

Furthermore, in the same period, the ABS reported a rate of 4.9 out of every estimated 1000 females aged 55 to 59 and 0.9 out of every estimated 1000 females aged 65 and older divorced.

1. What do I do if I want to seek a grey divorce? 

One of the best things that you can do if you have decided to divorce is to seek an experienced family lawyer as soon as possible. Let us look at three significant legal considerations and one other consideration that will highlight why seeking professional advice early is essential.

Notably, there are often two parts to separating. These being:

1. The divorce application, which if granted, ends the marriage. 
2. The property settlement which will divide the matrimonial (or de facto) property. 

You should seek advice from an experienced family lawyer who can assist you and advise you on which part(s) you need to do and what order to do them. 

2. How are retirements and pensions split in a late-in-life divorce?

The division of property for married and de facto couples is governed by the Family Law Act 1975 (Cth) in Australia. Therefore, Australian assets and property interests can be determined under these laws. 

There are provisions, rules and procedures in family law that apply to superannuation. For example, superannuation interests can be subject to splitting orders so that you may receive some of your former spouse’s superannuation as part of the settlement. 

Superannuation interests can also be valued, including things such as defined benefit schemes. 

Speak to an experienced family lawyer without delay when there are superannuation interests, retirement plans, and pensions to be considered. It may be that urgent actions such as flagging orders or injunctions are needed to protect your property pool or to secure spousal maintenance if applicable. 

3. Postnuptial agreements and Court Orders

You may wish to consider how you would like to finalise your property matters with your former spouse. There is not a ‘one size fits all’ outcome here. What worked for a friend or family member may not work for you. So, seek legal advice so you can make an informed decision. 

A Financial Agreement sometimes called a postnuptial agreement, or a binding financial agreement, may be a way to finalise your matter or be sought by your former spouse. These agreements require in-depth and tailored legal analysis and advice. 

You may need to finalise your property matters by way of a Court Order. These can be made by consent if you and your former spouse have an appropriate agreement as determined by the Family Court or by way of Orders if you can’t reach an agreement. 

A practical tip for preparing for a later in life divorce and an initial consultation with a family lawyer is to write down all of the property or financial resources that you are aware of, such as:

• real estate
• superannuation accounts
• retirement plans/pensions
• bank accounts
• vehicles
• recreational vehicles (e.g. caravans, campers, boats, golf buggies), share portfolios 

The more information you have, the better but do not fear if you simply do not know. That is one area in which an experienced family lawyer can assist you. 

4. Interim income and costs of living 

The advent of separating may cause you some interim issues around your income stream(s) and the costs of living. For example, your former spouse may be still working. In contrast, you may have retired or are attending to homemaking duties, and the income stream is predominately from your former spouse’s employment. 

When contemplating your grey divorce, you will need to consider what income access you have and whether this is suitable for you and your reasonable standard of living. 

Further, you will need to consider what arrangements to make to pay expenses/outgoings such as mortgage(s), rates, utilities, insurances and so forth. 

There is the potential that you may be able to seek interim relief. Here, an agreement or Court Order for the payment of outgoings and spousal maintenance from your former spouse until you reach a final agreement about these payments and your overall property pool. 

Spousal maintenance payments are legally complex and can often create significant levels of emotional distress for both parties who are separating. Hence, seek competent legal advice on these matters at an early stage. 

Advice from other professionals about grey divorce

Notably, an experienced family lawyer cannot provide you with all the advice and support that you may need at this difficult time. 

However, they may be able to share suggestions or point you in the direction of other professionals who can help you commence your newly separated life. 

You may need to see another legal practitioner for estate planning, such as updating your last will and testament, drafting or updating estate documents such as medical treatment decision maker documents and reviewing your binding or non-binding superannuation nominations.

Other types of advice that you should obtain include financial advice from qualified financial persons such as an accountant or financial planner. You may need to get advice on your potential government entitlements and may also benefit from seeing some health professionals, such as your general practitioner or counsellor. 

What next?

Separating at any age is a significant and often stressful life event. Grey divorce is unlikely to be any less stressful. Here at Roger Fritz LLP, we understand your emotions and worries about where to turn or what to do next. 

Let us assist you with this process. An empathetic, supportive and competent legal ear is only a phone call away. Alternatively, fill out the form below to request a call back from our friendly team.