Separations later in life have their own texture. The relationship may have lasted decades; the house may be owned outright or nearly so; superannuation may be the largest single asset, or already be paying a pension. Adult children have views. Retirement is either imminent or already underway. None of this alters the law that applies, but all of it affects the order in which decisions should be made, and how much room there is to correct a decision that turns out badly.
What “grey divorce” means
The term is journalistic rather than legal. It is commonly used of separation or divorce among people aged 50 or over, and it is worth being clear at the outset that it carries no legal consequence: there is no separate statutory scheme, no different threshold, and no presumption that a long marriage produces a particular percentage.
Three distinct processes are often confused. Separation is a factual state — the relationship has ended. Divorce is a court order that dissolves a marriage. Property settlement and spousal maintenance are separate financial questions, which can be resolved before, alongside or after a divorce. Not every later-life separation involves a marriage: where a Victorian de facto relationship of the required kind has broken down, the parties do not apply for divorce, and their financial claims run under the Part VIIIAB pathway described below.
The available official statistics support only a modest observation. In its Marriages and Divorces, Australia release for 2025, published on 28 July 2026, the Australian Bureau of Statistics reported that the median age at divorce rose again, to 47.3 years for males and 44.4 years for females, that the median duration from marriage to divorce rose to 13.4 years, and that age-specific divorce rates increased for all male age groups from 40–44 years and older and all female age groups from 35–39 years and older. Australians are, on those measures, divorcing at older ages and after longer marriages. The long-run crude divorce rate is not rising, and we do not suggest otherwise.
Why later-life separation needs different planning
The legal test is the same; the practical margin for error is not. Several features recur:
- A long financial history, with assets acquired, sold, refinanced, inherited and intermingled over decades, and records that may be incomplete.
- Less time, and sometimes reduced earning or borrowing capacity, in which to rebuild after a settlement — which makes the composition of a settlement as important as its percentage.
- A transition from employment to retirement, or an existing retirement, so that future income is fixed or drawn from capital rather than earned.
- Housing, health and care needs, and relationships with adult children, all of which legitimately shape practical planning.
Adult children are not parties to their parents’ property settlement and have no entitlement to the family-law property pool. Their involvement is usually practical and emotional, and occasionally financial in the sense that loans to or from children need to be identified and characterised properly.
The property framework current from 10 June 2025
Property settlement is governed by the Family Law Act 1975 (Cth) as currently in force. For married couples the relevant provisions are sections 79 and 79AA; for eligible de facto couples, sections 90SM and 90SMA, subject to the Part VIIIAB gateways — including the geographical and relationship requirements in sections 90SB and 90SK, which must be satisfied before the court can make an order.
The current structure requires the court to identify the parties’ property, liabilities and relevant financial resources; to assess the contributions each party made, financial and non-financial, including as homemaker and parent; to assess the current and future circumstances of each party; and to make an order altering interests only if satisfied that it is just and equitable to do so. The reforms also expressly require the court to consider the economic effect of family violence on the parties, where that is relevant.
There is no automatic 50/50 rule, and no formula by which age, gender or the length of the marriage mechanically dictates a percentage. A long marriage often, but not always, produces findings of broadly comparable contributions; the assessment of current and future circumstances then does real work, particularly where income, health or housing security differ.
The family home and housing security
For most later-life separations the home is the emotional centre of the negotiation. The realistic options are a sale and division of proceeds, a transfer to one party with an adjustment elsewhere, a refinance, a downsizing plan, or a negotiated structure such as deferred sale on a defined event.
Closer to retirement, the constraint is often finance rather than law. Capacity to service or refinance a mortgage, and to obtain new borrowing at all, may be materially different from a decade earlier. A wish to retain the home should be tested against cash flow, rates, insurance, upkeep, any remaining debt and what is left of the settlement once the home is retained. We do not give financial advice; where the decision turns on lending capacity, tax or retirement income, we work alongside your accountant and a licensed financial adviser.
Superannuation, defined benefits and pensions
Superannuation is property that can be dealt with under the family-law framework, but a split is not automatically required: it is one option among several for achieving a just and equitable result. Where an interest is split, the amount generally remains preserved superannuation for the receiving party rather than cash in hand.
Long relationships frequently involve more than a single accumulation account: defined-benefit interests, interests already in pension phase, self-managed funds, and Victorian public sector interests such as those administered by ESSSuper. For several of those interests a member statement does not establish the family-law value, and a valuation method prescribed or approved under the superannuation regulations must be used instead. We deal with the detail separately in superannuation in property settlements, defined-benefit superannuation and ESSSuper and family law.
Retirement income, tax and asset equivalence
Two assets with the same headline value are rarely equivalent. They can differ in liquidity, in tax treatment on realisation or on withdrawal, in risk, in whether they produce income, and in when they can be accessed at all. Preserved superannuation, an investment property with an unrealised gain and cash in an offset account are not interchangeable, even at identical figures. Later in life, when the settlement has to fund living costs rather than be rebuilt from earnings, that difference is often the most important feature of a proposal.
Separation may also affect how a government agency assesses a person’s relationship status and means. Australian social-security entitlements are not “split” between spouses in a property settlement, and nothing in a family-law order changes eligibility for Medicare. Where a payment or assessment is relevant, obtain current information from the relevant agency and, if needed, from a licensed financial adviser before finalising terms.
Businesses, companies, trusts and investment structures
Where a business or structure is involved, the work is to identify it, understand who controls it, and value it properly. Legal title is a starting point, not the answer: the treatment of an interest can depend on control, on the terms of a trust deed, on loan accounts and on the history of contributions. Trusts are not automatically outside the pool, and we do not promise that any structure is protected from a family-law claim.
Guarantees, security given for business debt, the tax consequences of restructuring or transferring interests, and the income streams a party actually relies on all need to be addressed before a settlement is signed rather than after.
Spousal maintenance
Maintenance is a separate question from property settlement and can be dealt with on its own. In general terms, the threshold is that one party is unable to support themselves adequately — for reasons the Act recognises — and the other party is reasonably able to pay, with the court then considering a list of statutory factors including age, health, income, property, capacity for employment and the standard of living that is reasonable.
Later-life factors such as age, health, a long absence from paid work, care responsibilities and retirement position can be significant. But maintenance is not automatic, and it is not a reward for a long marriage; it is an assessment of need against capacity. The Court’s spousal maintenance guidance, linked below, sets out the process and the material required.
Wills, enduring appointments and nominations
Separation on its own does not alter your will. In Victoria the effect of the end of a marriage on a will is governed by the Wills Act 1997 (Vic): under section 14, a divorce generally revokes a disposition to, and an appointment (such as executor) of, a former spouse, subject to the statutory exceptions in that section and to any contrary intention appearing in the will. That is a reason to review your documents immediately on separation rather than waiting for a divorce order, and not to assume that every instrument or nominated benefit updates itself.
Review, at the point of separation:
- your will, including executor and beneficiary provisions;
- your enduring power of attorney under the Powers of Attorney Act 2014 (Vic), and your appointment of a medical treatment decision maker;
- superannuation death-benefit nominations, and whether they are binding or non-binding;
- life-insurance nominations, inside and outside superannuation; and
- jointly held assets, which may pass outside the will.
Do not assume that separation or divorce has revoked or updated a superannuation or insurance nomination. Check the governing rules and your current nomination with each fund or insurer, and deal with it deliberately. Our guides to making a valid will in Victoria and enduring powers of attorney set out the requirements, and our wills and estate planning page explains how we approach a review.
Divorce timing and limitation periods
Married parties must generally have been separated for at least 12 months before applying for divorce. Once a divorce order takes effect, an application for property settlement or spousal maintenance must generally be brought within 12 months, and after that only with the court’s leave or the other party’s consent. For eligible de facto couples, the general period is two years after the breakdown of the relationship, again subject to the statutory exceptions.
In later-life separations these dates are missed more often than they should be, because the parties settle into separate lives without formalising the financial arrangements. Our guides to applying for divorce and property division after separation deal with the sequence in detail.
A practical planning checklist
- Secure your records: bank, loan, tax, superannuation, insurance and title documents.
- Identify every asset, liability and entity, including companies, trusts, loans to or from family, and interests held overseas.
- Request superannuation information for each interest, rather than relying on a member statement alone.
- Prepare realistic post-separation housing and cash-flow scenarios, including borrowing capacity and running costs.
- Consider whether interim arrangements are needed for occupation of the home, expenses or interim maintenance.
- Review your will, enduring appointments, medical treatment decision maker, and death-benefit and insurance nominations.
- Obtain tax and licensed financial advice where the outcome turns on it.
- Document any agreement properly, by consent orders or another legally effective mechanism, rather than by informal understanding.
How we can help
Holt & Macdonald advises clients in Ringwood and across Melbourne’s eastern suburbs on separation later in life — property settlement for married and eligible de facto couples, superannuation including defined-benefit and Victorian public sector interests, spousal maintenance, divorce applications, and the estate-planning review that should accompany them. Where accounting, lending or financial advice is needed, we coordinate with your other advisers so that the legal documents reflect a plan that actually works.
