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Navigating the legal complexities of a ‘grey divorce’
Older couples who want to divorce often have their minds completely made up, but there are still numerous challenges that family lawyers must be prepared to address before the separation can be official.
Naomi Neilson
Since the COVID-19 pandemic, there has been an increase in the number of mature-aged people who have questioned whether they should stay in a marriage that may no longer be healthy or compatible, Jessica Koot of Watts McCray Lawyers told Lawyers Weekly.
While divorce will always be a difficult and emotional process, Koot said couples above the age of 50 who are calling it quits – referred to as the “grey divorce” – often find themselves in a “life’s too short” mentality and are looking for the “light at the end of the tunnel”.
“When they’re later in life and they reach retirement … they’re really starting to see a non-alignment in what they want to do in their personal lives and their hobbies and things that otherwise wouldn’t make such a big difference when you’re spending so much time at work and so much time with the kids,” Koot, the firm’s Illawarra office practice leader and principal lawyer, said.
By the time the couple has approached a lawyer, Koot said, their minds have been made up, most have tried counselling or otherwise had a “really good crack at it”, and are ready to take that next step.
While this may make the separation smoother, the grey divorce has a number of hurdles family lawyers must be prepared for.
The biggest is the financial burdens that some may face after leaving a marriage, particularly in the current cost-of-living crisis and the hefty demands of a dwindling rental market.
Koot said that when one party has been a homemaker, a lawyer will have to consider whether the other party is still working and has the capacity to meet costs, whether their client will be eligible for spousal maintenance, and if they can meet the capacity threshold.
There may also be medical expenses to consider, especially when one client may have a disability or require full-time care.
“Then, if we’re looking at the sale of the home, what potential implications does that have for clients? Does it have any implications on government pensions that they’re receiving? Often, we’re talking to advisors, such as accountants or financial planners, to talk about these issues and any impacts,” Koot said.
For younger divorcing couples, they have a lifetime of work ahead of them to rebuild after separation, but many in a grey divorce do not. Koot said lawyers will then have to consider whether they have a home to live in afterwards and how they can afford to start again.
“I think the other thing is the estate planning issue, which is a live issue for all our clients, but definitely even more so for clients who are later in life, [so we must] ensure we are referring the work to someone who is an expert to get all that tidied up.
“The other thing is with retirement homes and how that can be really complex in a property settlement, and [we have to] really understand how to divide the money in such circumstances. If there’s an elderly client, there can also be capacity issues,” Koot said.
Koot said lawyers must also consider the safety of their clients, particularly when there is a history of violence. Unlike younger couples who often have their parents and childhood homes to turn to, women in grey divorces can be limited on the alternatives.
“It’s definitely a big concern, and I think it’s a reason a lot of women do stay in very unhappy, unhealthy marriages. A lot of victim-survivors have been through a lot, but the reality of what the financial future looks like is often really, really difficult,” Koot said.
Koot said it is also common for adult children to step in, and it can create a “really, really messy” environment where there is a “lot of emotion” and high conflict. Koot explained a grey divorce “can be quite emotionally devastating for the whole family”.
Navigating these emotions is something Koot thinks lawyers “should be doing better”, particularly in the family law space.
She explained it is important that family lawyers understand how to manage emotions so their clients are calmer and able to provide the best and most informed instructions.
“I don’t think we get enough training around how to understand how clients and the psychology of what they’re going through.
“In family law, separation is one of the most traumatic things that anyone will ever have to go through, and I think it’s essential that lawyers know and understand how to listen to clients [and] how to get the most out of their clients,” Koot said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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