Divorce, in general terms is an emotionally challenging period for couples regardless of their ages. Separating in your late years after decades of marriage will likely have legal implications on your retirement plans. Getting the right legal advice is the key to eliminating the stress that divorce carries and ensures that you are set for life.

Understanding Grey Divorce

In recent years, there has been a noticeable trend in the family law landscape: the rise of ‘grey divorce’. Grey Divorce refers to the dissolution of marriage among older couples, typically those aged 50 and above. Couples’ decision to reassess their relationship and prioritise their personal fulfilment can follow from the changes in their family dynamics, such as the end of shared parenting responsibilities after their children have grown and left home. However, such changes do not come without emotional and legal consequences.

In Australia, grey divorce has been steadily increasing. According to the Australian Bureau of Statistics, divorce rates among those aged 55 and over have doubled since the 1990s. This increase could be attributed to several factors, such as the changing in societal attitudes towards divorce, the increased life expectancy and the shift in gender roles within Australian society.

The implication of gender on Grey Divorce outcomes

Grey divorce is challenging for both men and women. However, its implications are more overwhelming for women than men. This is because Australia operates under the “no-fault” divorce system, where women are expected to be financially independent following the divorce. However, women are statistically more vulnerable and subject to homelessness post-divorce than men due to their mature age, missed career opportunities early in their lives and unpaid contributions as homemakers. Data from the Australian Institute of Health and Welfare shows that divorced older women have become the fastest growing demographic among the homeless, escalating by nearly 31% since 2011. The role of the legal justice system is vital in these instances, and getting the right legal advice is the key to overcoming the unfair legal challenges faced by older women.

Legal framework

In Australia, the dissolution of marriage is governed by the Family Law Act of 1975, meaning that several important factors will be considered when applying for divorce and going through property settlement. Issues like the health of each party, spousal maintenance and support, duration of their marriage and the respective financial position will be more profound in the process.

When it comes to grey divorce, several key legal considerations divorcing couples should be aware of:

1. Spousal Maintenance

Spousal maintenance awarded can be ordered to one party, which is paid by the other party. Factors such as the income and earning capacity of each party, current and future health and financial needs and each party’s contribution are considered when deciding on spousal maintenance.

To be eligible for spousal maintenance, you should:

  • Be unable to support yourself financially; and/or
  • Be unable to gain meaningful employment; and/or
  • Be caring for a dependent child.

You should be aware that there is a time limit of 12 months after the divorce order comes into effect to bring in an application for spousal maintenance. The duration of the spousal maintenance depends on the unique circumstances of your case and is at the discretion of the Court. The amount payable for spousal maintenance might be awarded as a lump sum or may be an ongoing payment.

2. Superannuation

Under the Family Law Act of 1975, superannuation is considered a property, meaning it will form part of the asset pools that are subject to property settlement orders. Superannuation splitting is done either by applying to the Court and obtaining Court orders or through entering into a Binding Financial Agreement prepare and obtaining Court orders or through entering into Binding Financial Agreement prepared by experienced lawyers to ensure it is done fairly and tailored to the unique circumstances of the couples. There are two types of splitting orders:

  • Percentage split; and
  • Base amounts

The amount payable to the non-member spouse is calculated per the Family Law (Superannuation) Regulations 2001(Cth) and Section 90XT of the Family Law Act.

3. Property Settlement

The most profound implication of grey divorce is how to divide the financial assets and resources accumulated over time fairly between the spouses. This could be challenging given the long duration the complexity of the marriage and the need to preserve the relationship between the parties. Similar to orders made for Spousal Maintenance, the Family Law Act of 1975 governs property settlement orders. The Court will consider factors such as the financial contributions of each party, their each party’s financial contributions, future needs, and the care of any dependent children to determine a just and equitable division of the assets and avoid disadvantages to the other party. If no private agreement can be reached, Property settlement proceedings should be commenced no later than 12 months after the divorce order came into effect.

4. Estate Planning

Estate planning is the aspect most impacted by grey divorce, in particular, if the significant other is a beneficiary or a trustee under the estate. Reviewing existing wills, power of attorney and trusts is crucial when going through divorce, as the family dynamics will not be the same prior to separation. In most cases, the ex-spouse would still be named as a beneficiary under a will, trust, or executor of the will. Additionally, any gifts made to an ex-spouse will most likely be revoked. Furthermore, old couples usually will have Enduring Powers of Attorney in place in the circumstances where the other couple loses capacity. Those previously made arrangements may need to be changed. In those instances, the validity of the will is a key consideration if divorce takes place.

Grey Divorce is a growing trend in Australia. Grey divorce carries significant emotional and legal challenges for older couples. Understanding the legal framework and social dynamics surrounding grey divorce is crucial to ensure couples going through divorce navigate through the complexity of divorce with resilience and confidence. Seeking support from legal professionals can help divorcing couples effectively reflect their testamentary intentions and goals.


If you face such a situation, consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time. Empathy and understanding are crucial to helping clients through these difficult situations.

Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, including those involving divorce and property settlement disputes. Contact us today for a confidential consultation with one of our family lawyers.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.