When a relationship ends—whether marriage or de facto—dividing assets can be complicated. In Australian family law, the goal isn’t to split everything 50/50. Instead, the court focuses on what’s fair based on each person’s situation. And one of the key factors is age difference between partners.
Property Settlements: The Legal Process in Simple Terms
The Family Law Act 1975 outlines a four-step process that courts use to divide property:
Step 1: Work Out What You Own and Owe
This includes homes, cars, savings, superannuation, debts, investments, and any business interests.
Step 2: Look at What Each Person Contributed
Contributions can be financial (like income or inheritances) and non-financial (like raising children or homemaking).
Step 3: Consider Future Needs
This is where age, health, earning potential, and parenting duties are considered.
Step 4: Make Sure the Outcome Is Fair
Finally, the court makes adjustments to ensure the result is just and equitable based on everything above.
How a Big Age Gap Can Impact the Outcome
A large age difference—say 10 to 15 years—can impact how property is divided. Here’s how it plays out:
1. Older Partner May Have Less Time to Recover Financially
If the older person is nearing retirement, they may have limited income-earning years left. This can lead to a larger share of the property pool to support them.
Example:
Sam (60) and Jess (47) separate. Sam is retired with no income, while Jess works full-time. The court may award Sam a greater portion of assets due to limited earning capacity.
2. Superannuation Becomes Critical
An older partner with fewer years left in the workforce may receive a greater share of superannuation.
Example:
Jess still has 20 years of working life to build up super. Sam, already retired, gets a larger super split now to ensure financial stability.
3. Health and Age-Related Expenses
Older individuals may need ongoing medical care or support. Courts take this into account when considering future financial needs.
4. Impact on Spousal Maintenance
If the older partner cannot work due to age or health, they may be entitled to ongoing support—known as spousal maintenance—from the younger partner.
5. Parenting and Child Support Responsibilities
If children are involved, the younger parent might be responsible for a longer period of childcare. This could affect how property is divided, especially if that parent also takes on more of the parenting load.
What the Family Law Says About Age Difference
Section 75(2) of the Family Law Act 1975 lists several factors the court must consider. Age is right there among them—along with health, income, standard of living, and caregiving duties.
The court doesn’t automatically favour the older partner—but it does weigh up whether that person has a fair chance to recover financially after separation.
Real Cases Where Age Played a Role
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JEL v DDF [2000] FamCA 1353 – Older spouse got a larger share due to lower future earning potential.
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Fields & Smith [2015] FamCAFC 57 – Age difference was one of several reasons the court adjusted the split.
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Marsh v Marsh [2014] FCCA 2459 – A spouse in poor health and close to retirement received more to help cover future costs.
Final Thoughts
Age is one of many things the court looks at when dividing assets—but it can make a big difference.
If you or your ex have a significant age gap, think about how that impacts retirement plans, health, superannuation, and earning capacity. These aren’t just legal issues—they’re real-life concerns that affect your future security.