Your entitlements in a separation are determined by the specific facts of your relationship and assets, although the process is often complicated by existing overseas orders or the need to protect children from violence. There is no single fixed entitlement, as the court considers various factors to determine a fair outcome.
Overseas legal separations
A legal separation granted under the law of an overseas country may be recognised as valid in Australia under section 104. Practically, this means that if you have already obtained a separation order abroad, it can influence the legal standing of your marriage and the timing of your proceedings in Australia.
Timing of property settlements
Under the Family Law Amendment Act 2024, property settlement proceedings may be adjourned if the parties have been granted a legal separation under overseas law that is recognised under section 104. This can lead to delays in finalizing the division of assets while the court determines the validity of the overseas status.
Parenting and family violence
The law provides protections under section 190 for a person who takes or sends a child outside of Australia if they reasonably believe it is necessary to prevent family violence. In these circumstances, the conduct may be viewed as reasonable, which is critical when establishing future parenting arrangements.
The recognition gap
The primary difficulty arises when aligning overseas decrees—such as divorces or legal separations—with Australian law. Determining whether an overseas order is recognised under section 104 can create significant uncertainty and procedural delays before a property settlement can be finalised.
Questions to consider
- Do you have any overseas divorce or separation orders that need to be recognised under section 104?
- Are there urgent safety concerns that require moving a child to prevent family violence under section 190?
- Is there a registered maintenance agreement or a financial agreement that already governs your entitlements?
This information is general in nature and does not constitute legal advice. For advice specific to your situation, contact JB Solicitors.