Grey divorce refers to a type of divorce where the couple ending their marriage are aged over 50. Although the divorce rate in Australia has declined, there has been an increase in divorce amongst the older generations.
Psychologists have identified 3 common turning points which can contribute to divorce later in life including children moving out of home, retirement and health problems.
Additionally, now that people are living longer, many couples are less willing to settle for empty marriages.
From a legal perspective, property settlements can be more complicated due to the length of the marriage and future needs of both parties.
Normally grey divorces do not involve children, and if they do, the children are in their early to late teens making parenting generally more manageable.
Divorce and separation are governed by the Family Law Act 1975 (Cth) in Australia.
Where should I start?
The first steps for anyone separating from their spouse include the following:
- Change your passwords – for older people who have been in long term marriages, this can be more complicated. You might have shared email accounts, cloud storage accounts and shared devices.
- Start documenting assets and liabilities.
- Open separate bank accounts.
- Think about living arrangements – who will stay and who will go? Will you continue living under the same roof for a period of time? Will the family home need to be sold?
- Talk to a family lawyer.
It is important to note there are at least two separate parts to divorce and separation for married couples. These include divorce and property settlement.
Divorce refers to the legal end of a marriage and property settlement is the division of the couple’s asset pool.
A couple can only divorce after they have been separated for at least 12 months, whereas a property settlement can be finalised prior to divorce taking place.
Some couples choose to divorce first, and some choose to deal with the property first.
De facto couples will only need to deal with property. Some couples will also have parenting arrangements to deal with.
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Considerations
Financial Considerations
As one or both parties may be retired, the property settlement may be slightly more complicated. Consideration will need to be given to the future needs of both parties and future earning capacity, as well as the health of both parties.
Many property settlements involve a superannuation splitting order which can pose different challenges for parties to a grey divorce.
Parties to a long marriage will generally have significantly entangled finances. They might have joint bank accounts and property held in joint names and there might be limited evidence as to who made certain contributions early on in the marriage, which can make property settlements more complicated to resolve.
Emotional Considerations
It is important for individuals going through grey divorce to seek emotional support from loved ones and professionals.
For people that have been together for a long time, relationships will often be intertwined, and many people will struggle with changes to relationships, especially with in-laws and friends.
It is important to note however, that studies have shown that older people generally have a better perspective and heightened awareness due to having more life experience. Nevertheless, it is important to reach out and seek professional help when necessary.
Estate Planning Considerations
It is imperative that individuals going through a grey divorce review their estate planning documents such as Wills, Enduring Powers of Attorney and Medical Treatment Decision Maker documents to ensure they reflect their wishes after changes to the relationship.
If they own property as joint registered proprietors, couples will need to take advice on severing the joint tenancy, as if one party dies, the share of the property owned by the joint tenant will become the property of the survivor of the couple and will not flow into that person’s Will.
Usually, couples who are separating do not want their spouse to end up as the sole owner of jointly owned property if they were to die before a property settlement is resolved.
This will be particularly important if the parties have children from an earlier marriage, as their part of the family may miss out on receiving a share in real estate that is jointly owned unless the joint tenancy is severed, as it is likely the survivor of the couple will choose to leave the property to their own children and not the children of their former spouse.
Severance of a joint tenancy can be done unilaterally, and will result in the parties owning the property as tenants in common in equal shares, meaning each party’s share will flow into their Will.
At the time of separation, it is important to seek advice from an estate planning lawyer as it is likely you will need a new Will and you may need to sever a joint tenancy.
Legal Advice
It is important to seek legal advice early to obtain advice tailored to your situation. At Matthies Lawyers, we understand every divorce is unique and we have extensive experience dealing with all types of divorce and separation, including grey divorce.
Resources
Family Relationship Advice Line: Telephone 1800 050 321
Relationships Victoria Counselling
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.