International divorce relates to the breakdown of a marriage, where both parties or one party reside in a country other than Australia and/or are citizens of a country other than Australia. Similarly, international property settlement relates to the settlement (arrangement) of assets (accumulated in a relationship) that are located in a country or countries other than where the owner/s live. As such, divorce or property settlement cases that entail an international element may include complexities such as determining:
Under Part VA of the Marriage Act 1961 (Cth), marriages that have taken place overseas can be registered and/or recognised in Australia provided that:
Under the Marriages Act 1961 (Cth), a marriage will generally not be recognised in Australia if:
To be able to apply for a divorce in Australia, at least one person from the married couple must:
Pursuant to section 48(1) of the Family Law Act 1975 (Cth), divorce in Australia can only be granted on the basis of an irretrievable breakdown of marriage. To prove an irretrievable breakdown of marriage, the parties must have been separated for at least twelve months with there being no reasonable prospect of them getting back together. For more details regarding applying for a divorce in Australia read our earlier article on Marriage and Divorce.
Generally, the parties or a party should apply for a divorce in the country that they have the closest connection with – for instance, a closest connection could be established with the country which holds most of the parties’ assets. Consideration should also be given to the:
It should be noted that while Australian courts do have powers to make orders relating to foreign property, they do not have the power to enforce these orders in other countries. Some countries, however, may recognise an Australian court order and decide to enforce it in their jurisdiction.
Under section 104 of the Family Law Act 1975 (Cth), divorces (and annulments) that have occurred overseas are generally recognised in Australia depending on whether:
Breakdown of relationships in today’s progressively globalised society is relatively common. Complexities, however, are likely to arise with cases where individuals are divorcing and/or settling their property internationally.
Comasters is able to assist clients in either commencing or responding to family law matters that involve international aspects.
© Comasters October 2019.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.