Facing a Grey Divorce or Separation?

Have you heard the term ‘Grey Divorce’?

There is a growing trend in couples divorcing later in life, with the average age of people getting divorced shifting to people aged in their mid-forties, and a significant increase in the numbers of those separating after the age of fifty; often referred to as “Grey Divorce” or “Silver Splitters.”

Separating or getting divorced, no matter what your age, is difficult. However, a divorce later in life can pose its own unique considerations and make some of the expected consequences of a separation felt more sharply.

Answers to Your Grey Divorce and Separation Questions

At Doolan Wagner Family Lawyers, some of the most common questions we are asked in relation to “grey” separation and divorce matters are:

Q: I want to reach an amicable financial settlement with my spouse but don’t necessarily want to get divorced. Is this possible?

Divorce and financial separation are two different matters. You may reach a financial settlement with your spouse without necessarily making an application for divorce.

Although the Family Law Act 1975 (Cth) prescribes a 12-month period from the date of separation for parties to make a Divorce Application, the same does not apply with respect to settling financial matters.

Financial matters can be settled with your spouse on a final basis at any time and without the requirement of a divorce order. In fact, it is common for parties to reach a property settlement in the period of separation prior to divorce and remain separated for several years before contemplating making a Divorce Application with the Court.

A financial settlement can help parties resolve all matters pertaining to their respective and joint assets, liabilities, and superannuation. Accordingly, it is prudent to resolve those matters as soon as practicable where possible. This is also the approach favoured by the Court as provided by the “clean break” principle contained in sections 81 and 90ST of the Family Law Act 1975 (Cth) which provides that as far as practicable, the Court make orders to finally determine the financial relationship between parties to assist the parties with avoiding any further proceedings between them.

Q: What is the correct date for valuing the assets, liabilities, and superannuation for the purposes of settlement? Is it the date of separation, the date of divorce or currently?

One of the first steps to reaching a property settlement is to identify and value all of the assets, liabilities and Superannuation which you and your ex-partner have an interest in. This is an essential step to identifying the value of the asset pool which can then be divided either by agreement or court order. In Australia, assets and liabilities are valued as at the date that the Court determines a matter if the matter is in Court. In the case where you and your ex-partner agree to a property settlement, it is ordinarily a date close to that of the agreement. In some instances, there may be a significant time gap between separation and the date at which the Court determines a matter. During this time, assets such as the matrimonial home or a business may significantly increase or even decrease in value. The Court will value that property as at the date of hearing and not adjust and divide the assets and liabilities as they stood at separation. That being said, the Family Law Act requires the Court to consider post-separation contributions of the parties to the acquisition, maintenance and improvement of all assets, for example where one party has made all of the mortgage re-payments since separation and worked to maintain and increase the value of the matrimonial home. However, it is important to note that this does not mean that you would be entitled to complete compensation for your post-separation financial contributions.

We hope you found these answers helpful and will follow on with more common questions in our next article published by Australia Over 50’s.

If you want to learn more about separations and divorces in later life, visit our website: Grey Divorce – Divorce & Separation in Later Life | Doolan Wagner (familylawyersdw.com.au), for everything you need to know when facing a Grey Separation and Divorce.

Courtesy Doolan Wagner Family Lawyers

Disclaimer:

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us on (02) 9437 0010.

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