There are over one million Australians living overseas.
There are many benefits of branching out to a different country — you meet new people, experience a different culture, and even acquire properties and other assets. But international living can become difficult when family matters, such as marriage, divorce, and parenting issues, are involved.
When a separation requires legal representation, it is critical you have an experienced international family lawyer by your side who can guide you through your family law separation.
Why do Australians branch out overseas?
Families that split across borders live a very unique life. But why are more families willing to invest their lives abroad? Here are a few common scenarios.
There are many benefits to owning property and other assets in different countries. Oftentimes, the costs are significantly cheaper than what you pay back home. You can also live in a beautiful place, such as an island or a country up in the mountains, for a significant part of the year.
Most Australian residents today were likely born in a different country. This makes Australia one of the most immigration-friendly countries in the world. This also means most Australian citizens have families who live in different countries.
It’s common for Australians to constantly travel overseas to visit loved ones or even live part of the year in the country their family resides.
Over 4 million Australians have dual citizenship. Dual citizenship comes with many benefits — you can live and work in two different countries, own property, and travel between both countries with ease.
Issues that arise when living overseas
We’re becoming more interconnected and there are more opportunities to live abroad. However, international living can come with some issues — especially if you’re enduring divorce and you have children.
Global relocation varies between every country. If there are any issues during the international relocation process, they not only affect the individual, but also their entire family.
Some common issues experienced when relocating include expenses, finding employment, housing, and complying with local laws.
Overseas Service of Documents
The service of legal documents across international borders will be met with restrictions. All court documents must be served to the proceedings, including your lawyer. After you serve the documents, proof of service will be filed with the court.
What Is International Family Law?
International family law is a term that handles all family law matters in an international setting.
For your situation to qualify under international family law, either your spouse or child needs to be from a different country. Some legal matters will also fall under international family law. For example, you may be settling property and assets during a divorce if you and your spouse jointly own property overseas.
More Australians need international family law assistance. It has become the norm to have at least one immediate family member who lives outside of the country. In addition, more Australians are moving overseas as expats or are pursuing international relationships.
Even though globalisation is more common, family law remains complex. In Australia, the courts that exercise jurisdiction under the Family Law Act are the Federal Circuit Court of Australia and the Family Court of Australia.
But what about international family law cases? Every country has their own family law guidelines that may not align with Australia’s laws. This is often the case when the country’s main religion, their local culture, and its extensive history plays a role in their family law.
Common questions asked about International Family Law
Because international law is so complex, many people have similar questions in mind. We have compiled a list of frequently asked questions below.
Will my marriage be recognised if I married overseas?
Your marriage will be recognised in Australia on the basis that:
- Your marriage is recognised in the other country;
- You meet all marriage requirements in Australia and the other country; and
- The marriage would have been valid if you were married in Australia
In addition, your overseas marriage certificate will serve as proof of marriage in Australia. If the certificate isn’t in English, the marriage certificate is required to be translated by an authorised translator. The translator is then required to sign an affidavit proving the translation quality and their credentials.
I married overseas. Do I need to get divorced in Australia?
Even if you got married overseas, you can get divorced in Australia if you meet one of these qualifications:
- You’re an Australian citizen; or
- You’re an Australian resident and Australia is your current country of residence; and
- Your residency has lasted at least twelve (12) months
Keep in mind, you may need to prove your eligibility.
I’m worried my ex will take our child overseas. How can I stop them?
You can prohibit a parent from taking a child overseas by placing them on the Australian Federal Police ‘Family Law Watchlist’.
The Australian Federal Police (AFP) maintains a Family Law Watchlist to monitor the movement of children. The Watchlist provides a list of all children who are subject to a parenting order under the Court who are prohibited from leaving Australia. Their names are registered at all international departure points within Australia. In the event that someone is attempting to take the child overseas, authorities will be notified and the child will be stopped from leaving the country.
To place a child on the Family Law Watchlist, an Application to have the child placed on the Family Law Watchlist must have been filed, or alternatively, the Court must have made an order to have the child placed on the Family Law Watchlist.
My child is overseas. Can I return my child to Australia?
If you are the primary carer parent, you can demand the return of your child. If your child was previously in Australia and your former spouse took your child out of the country without your consent, this is known as international family law abduction.
In this case, you should contact the police immediately. You may also file an Application for Recovery Order through the Federal Circuit Court.
If successful, the Court will grant a recovery order. A copy of the orders should then be provided to the Australian Federal Police, along with a completed Recovery Order Information Sheet, to alert them. Authorities will then exercise their powers to attempt to recover your child to your care.
But this can be difficult when crossing borders. If the Australian Central Authority accepts your application, the application must first be accepted by the other country’s Central Authority. From here, the child can be returned to you or you may have to go through mediation or Court hearings.
In the event that the child was taken to a country that is a signatory to the Hague Convention of the Civil Aspects of International Child Abduction, authorities from Australia and the other signatory country will work together in an attempt to promptly return the child to the parent’s care in Australia.
In the event that a child was taken to a country that is not a signatory to the Hague Convention, you may be required to seek assistance from the Consular Branch of the Department of Foreign Affairs and Trade.
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that states a child must be returned to their country of residence when they have been wrongly taken out of international borders.
The Hague Convention also respects parental responsibility laws in the child’s country of residence and will always decide in the child’s favour. In addition, the child must be under the age of 16.
An international family solicitor can help you in child recovery.
I don’t have full custody. Can I still take my child overseas?
You can take your child overseas, whether on holiday or to visit family, as long as the parent with primary/equal care of the child is aware and consents to the travel.
What if you disagree on travel arrangements? You can file an application with the Court seeking parenting orders which allow you to travel overseas with the children.
If your application is approved, you may still have to follow specific guidelines. This may include providing sufficient notice of your intention to travel, submitting your travel itinerary as well as a means of communication between the child and the other parent.
Why You Need an International Family Law Solicitor
If you commonly cross international borders for family reasons, you will benefit from hiring an international family lawyer. Your solicitor should have experience with dealing with complex international laws and the issues that can arise from them.
Here are ways an international family solicitor can help you.
An overseas divorce that complies with both Australian law and the law overseas is recognised in Australia if one party has citizenship or residency in the other country.
But international divorce can be tricky at times. Hiring a solicitor will ensure your divorce complies with the laws in both countries.
International Divorce Representation
Australians who are married to a foreigner may face increased legal jurisdiction, especially when they’re getting divorced. An international family solicitor can provide legal services that comply with both countries’ laws.
One of the best examples is court procedures that vary between countries. You’ll want to ensure both countries recognise your divorce without any issues. These procedures may become more complex when children and spousal maintenance is involved.
Assets and Property Settlement
What if you are separating from your spouse and you own property overseas? If this is the case, it is important to carefully consider international property settlement between you and your former spouse. While you may have to go through the Australian family law court system, you must also abide by the other country’s Court and legal system.
There could also be tax consequences with keeping or selling the property, both in Australia as well as the other country.
What to Look for in an International Family Solicitor
Not all international family solicitors are the same. The knowledge a skilled solicitor is required to know differs from conventional Australian family law. Here’s what to look for.
Understanding Family Law in Different Countries
Domestic relations and family law vary between countries and a skilled international law solicitor will have in-depth knowledge of these laws. They may have a speciality in only a couple of countries or several countries.
In addition, they can help you obtain foreign property and assets, making sure you comply with local laws. They will also assist in mediating these assets if you and your spouse are divorcing.
To better understand the different laws, your solicitor will compare the laws and will inform you of any differences between the countries.
Handling Custody Overseas
Raising children overseas or in different countries can also be difficult. This issue may become more difficult during divorce when you have to agree on parental responsibility. Some countries have specific parenting laws, which may be impacted by cultural and societal views, beyond legal matters.
When considering parenting rights,the Australian family law system places the child’s best interests at the forefront. But your lawyer can help you navigate other country standards so you can choose the best parenting arrangement that complies with both countries that is also in the best interests of the children of the relationship.
Our International Family Law Expertise
If you decide you need international family law help, a solicitor you can trust who not only has experience handling Australian laws but also has knowledge of international family law may be beneficial.
The family law department at JB Solicitors hold a wealth of knowledge and experience when it comes to relationships that extend beyond Australian seas.
Our solicitors are able to assist in family law matters during and after a relationship, including Binding Financial Agreements, property settlement, parenting issues and divorce. We are also able to assist with recovery and location orders in the event that a child has been abducted and taken overseas.
What separates our international family solicitors from others in Sydney? We offer fixed pricing on some of our family law services so you know how much you have to pay upfront.
Contact an International Family Lawyer Today
Do you need an international family lawyer? We can assist clients who live in Australia as well as Australians living abroad. Contact us today. We offer a confidential way to communicate your sensitive situation.