International divorce Australia is becoming more common as the world becomes more interconnected. However, navigating the legal system for divorce in Australia after an overseas marriage can be complex.
This article will discuss how Australia recognises foreign divorces. It will also discuss the legal implications under the Family Law Act 1975. Furthermore, we will outline the impact of overseas divorce on Australian property settlement.
What Is International Divorce Australia?
International or overseas divorce refers to getting a divorce overseas. Recognition of foreign divorces varies depending on the country and legal system.
Overseas divorce can have implications for property settlement, financial entitlements, and child-related matters such as custody arrangements. It is essential to seek legal advice to determine the appropriate steps for property settlement after an overseas divorce. Parties must also consider the best interests of the child when dealing with international divorce Australia.
Recognition of International Divorce Australia
Overseas divorce, in the context of Australian family law, refers to obtaining a divorce in a foreign country. Moreover, it also relates to the recognition and impact of that divorce in the Australian family law system. If parties get a divorce overseas, Australia generally recognises the divorce if it meets the conditions that the FLA sets.
This recognition of international divorce Australia is based on the principle of comity. This is the mutual respect and recognition of the laws and judgments of other countries. Additionally, for the divorce to be recognised, the marriage must have been valid in the country where it took place. You can still apply for a divorce in Australia if either one of you:
- Considers Australia as your home and intends to live here indefinitely;
- Is an Australian citizen by birth, descent or by grant of Australian citizenship;
- Usually lives here and has done so for 12 months prior to filing for divorce.
What Does the Australian Law Say?
Section 104 of the Family Law Act 1975 lists conditions for the recognition of overseas decrees regarding divorce proceedings. Here are the conditions that Section 104 outlines:
- If one party obtained a divorce, annulment, or legal separation, Australia would recognise the decree if the party served the respondent with the proceedings in the foreign country or if the respondent submitted to the jurisdiction of the foreign court.
- If both parties obtained the divorce, annulment, or legal separation, Australia would recognise the decree if each of the parties was domiciled in the foreign country at the time of the proceedings or if either party was domiciled in the foreign country and the other party was personally served with the proceedings in the foreign country.
- Australia will not recognise the decree if one party obtained it by fraud, lack of notice, or lack of jurisdiction.
Moreover, there are also instances when Australian family law does not recognise international divorce:
- Under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice.
- Recognition would manifestly be contrary to public policy.
Applying for a Recognition of Overseas Divorce in Australia
Here are the steps to have an international divorce Australia recognised:
- Ensure that you obtain the overseas divorce in accordance with the laws of that country.
- Obtain a copy of the overseas divorce certificate.
- If the overseas or foreign marriage certificate is not in English, you need to file an English translation. You must file this with an affidavit from the person who translated it. Attach both the marriage certificate and translation to an Affidavit.
- File the overseas divorce certificate with the relevant Australian authorities. This may include the Department of Home Affairs, the Registry of Births, Deaths and Marriages, or the Family Court of Australia.
- If you wish to remarry in Australia, you must provide evidence of your overseas divorce to the Registry of Births, Deaths, and Marriages.
However, there may be further procedural issues that can arise when having an international divorce Australia recognised. To make sure that you are aware of your rights and obligations, it is advised that you get legal counsel.
Impact on Australian Property Settlement
While a divorce obtained overseas is recognised in Australia, the rights and entitlements of the parties in relation to property settlement may not be automatically recognised.
The Family Law Act 1975 provides for the division of property and financial resources between the parties, but the specific rights and entitlements may vary depending on the circumstances. In some cases, it may be necessary to seek legal advice to determine the appropriate steps for property settlement after an overseas divorce.
Section 44(3) of the Family Law Act 1975 states that the matrimonial property proceeding shall not be instituted, except by leave of the court/consent of the parties, 12 months after ‘the divorce.’ This means that if you want to apply for property settlement in Australia after an overseas divorce, you must do so within 12 months of the divorce.
Although Australian courts have the power to make property adjustment orders in relation to assets outside of Australia, there may be technical issues as to:
- whether that order can be enforced,
- how to implement it, and
- whether there are any tax implications.
It is wise to seek advice from both jurisdictions so you can make a decision to apply to the federal circuit court in whichever jurisdiction is best for you.
Validity of Overseas Marriages
The validity of overseas marriages in Australia is an important factor in determining the eligibility for divorce in Australia and the application of Australian family law principles to the marriage and divorce. Here are some key points to consider:
- While you cannot register an overseas marriage in Australia, in most cases, Australia will legally recognise the marriage if the overseas country in question legally recognises the marriage.
- For Australia to recognise an overseas marriage, it must be valid under the law of the country at the time of marriage. Additionally, both parties must be at least 18 years of age, and neither party can be in a married relationship to another person at the time of marriage.
- The Marriage Act 1961 sets out the reasons that would make an overseas marriage invalid in Australia. These reasons include if one of the parties was validly married to another person at the time of the marriage if one was not of marriageable age in Australia, or if the parties are too closely related to marry.
- Australia also recognises overseas same-sex marriages that occurred prior to December 2017.
Working With a Family Lawyer
An experienced family lawyer specialising in international family law can navigate the complexities of your international divorce Australia including jurisdictional issues, recognition of overseas orders, and the application of Australian family law principles.
JB Solicitors has a team of expert family lawyers who can ensure protection of your rights and interests throughout the divorce process. We can help especially when dealing with complex issues such as child custody, property settlement, and spousal support.
If you want Australian family law to recognise your overseas divorce, we recommend that you seek legal advice before you proceed with the process.
Contact us today if you had your marriage overseas and want to apply for a divorce application in Australia.