Married Overseas and Divorcing in Australia?

It can be difficult to navigate the complexities of an international marriage or divorce for foreigners or residents of Australia. If you’ve been married overseas and are considering a divorce in Australia, this blog may shed light on the process for you.

Are Overseas Marriages Valid in Australia?

The key question many face is the validity of overseas marriages in Australia. The good news is that Australia generally acknowledges marriages conducted abroad, as long as they were legal in the country of marriage and would be considered legal under Australian laws. This means if you legally married in Paris or Beijing, it holds the same validity as if you married in a city of Australia like Sydney.

Residency and Jurisdiction: The Gateway to Divorce proceedings in Australia

The primary prerequisite for filing for divorce in Australia is not the location of the marriage, but the parties' residency status, which requires:

• Either spouse must consider Australia as their home and intend to live here indefinitely, or

• Be an Australian citizen (by birth decent, or grant of citizenship), or

• Live in Australia and have done so for 12 months immediately before filling the Application for divorce.

Grounds for Divorce: Irretrievable Breakdown of Marriage

The only ground for divorce is that the marriage has irretrievably broken down and there is no reasonable chance that you will get back together. To apply for a divorce, you must have been separated for a continuous period of at least 12 months. The period can include time living under one roof, but additional evidence is required in such cases. The 12 months starts from the day one or both parties ends the marriage.

It does not matter who was ‘at fault’ or whether both parties want a divorce.

Legal Maze of international Divorce: More Than just Dissolving a Marriage

While the process of applying for a divorce is usually relatively straightforward, it isn’t the only thing you should be thinking about if you are a separating. You may also need to consider addressing property division, parenting arrangements, and possibly spousal maintenance. These aspects can be particularly intricate when international marriages or relationships are concerned.

Seek Legal Advice

At Robinson + McGuinness we have experienced family lawyers that can guide you through the process of separation and divorce, offering fixed-fee divorce applications. We aim to protect your rights and interests, offering a supportive and knowledgeable guiding hand through this challenging time.

Please contact us to make an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Travel and Parenting Orders

With the school holidays fast approaching, many parents will be travelling internationally with their children. These experiences are seen as a once in a lifetime opportunity for lots of families and the benefits of international travel on the growth of a child can be intangible. As a separated parent, travelling with children gives rise to additional considerations and planning- on top of the effort which already goes into the trip itself.

This situation becomes complex for separated parents who are involved in current proceedings before the Federal Circuit and Family Court of Australia or where separated parents have already entered into parenting orders restricting their children from international travel. Sections 65Y and 65Z of the Family Law Act 1975 (Cth) specifically set out that if a parent, who is subject to a parenting order or where orders are pending (for example, awaiting the delivery of a judgment on an interim or final basis) removes a child from the jurisdiction of Australia, this parent has committed an offence. This offence carries a penalty of three years imprisonment.

What if I do not have orders in place or I am not in litigation?

A separated parent seeking to travel overseas with their children should approach the other parent and seek their consent for the travel in the first instance. Ideally, the parent seeking to travel would provide all the relevant information and details of the proposed travel- and with as much notice as possible- including duration, destination, method of travel, copies of travel tickets and itinerary, and where possible provide options for maintaining communication between the other parent and the children whilst overseas.

If the other parent refuses consent to the travel, you may need to apply to the Federal Circuit and Family Court of Australia for approval to travel. It is commonplace for this Court to make Orders pertaining to travel and provide for international travel so long as enough notice is provided, and the travel is to a Hague Convention Country, and that they are satisfied that the child will return to Australia at the end of the proposed travel. Often, the Courts order makeup time for the non-travelling parent if time with that parent is affected by the child’s travel.

What if I have concerns about my child’s international travel with the other parent?

In some cases, parents will have genuine concerns about a child travelling internationally for a number of reasons- risks to personal safety and wellbeing; impact on education if the child is missing school for a prolonged period of time; and where the parent holds a genuine concern that the child might be permanently removed from the jurisdiction of Australia. There may be valid reasons for a parent to not provide consent to the travel.

If you hold this concern about your child’s travel, you can make an application to the Federal Circuit and Family Court of Australia to have the child placed on the Australian Federal Police Watchlist. This can only occur via a Court Order and will prevent that child leaving any port of exit from the jurisdiction of Australia. In cases of urgency- where you have a grave concern that your child will be travelling imminently with the other parent- this process can occur very quickly.

It is important for separated parents to balance the benefits of overseas travel for their children with the possible competing interests of ensuring their safety and wellbeing. It is important to seek the other parent’s consent in the first instance when seeking to take your child overseas- and with enough notice where possible. If you are planning a holiday with your children, contact Robinson + McGuinness for specialist family law advice.

Contact Robinson + McGuinness today to arrange an appointment on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Lauran Clifton

The issue of forum: when proceedings are commenced in Australia and overseas

The majority of applications for a property settlement that come before the Federal Circuit and Family Court of Australia (“FCFCOA”) involve two parties who ordinarily reside in Australia and own property in Australia.  However, there are some matters where:

1. The parties ordinarily reside in Australia, however most of their assets are owned overseas; or

2. One or both of the parties do not usually reside in Australia, but they have property in Australia.

In these circumstances, it may be possible for the parties to invoke the jurisdiction of not only the FCFCOA, but also the courts of another country (i.e. where the parties are residing or where the property is held).  Commencing proceedings in another country, when the FCFCOA already has jurisdiction mostly occurs out of convenience, however it is also sometimes done for strategic advantage. 

If proceedings are commenced in FCFCOA by one party, and in another country by the other party, it will likely be necessary for the FCFCOA to decide whether it should continue to hear the matter.  In these circumstances, it is likely that the following two applications will be made in the FCFCOA:

1. The Applicant in the FCFCOA proceedings will likely seek an anti-suit injunction restraining the other party from continuing the overseas litigation; and

2.   The Respondent in the FCFCOA proceedings will likely seek a stay (or in other words a pause) of the FCFCOA proceedings to enable the overseas litigation to continue.

The FCFCOA will not lightly make the decision to stay its own proceedings; it has an inherent jurisdiction to permit the protection of its own processes from being used to bring about an injustice.

The High Court case of Voth v Manildra Flour Mills (1990) 171 CLR 538 outlines that the relevant principle to be applied by the FCFCOA in determining an application for a stay of the Australian proceedings is that of forum non conveniens. The relevant test associated with this principle is whether the Court in which the stay is sought is “clearly an inappropriate forum”.  The onus of establishing that Australia is clearly an inappropriate forum will be upon the party seeking the stay.

When considering whether Australia is clearly an inappropriate forum, the FCFCOA will look at:

1. Whether each Court has jurisdiction to hear the matter;

2. If the answer to 1 is yes, will each Court recognise each other’s orders or decrees?

3.  Which forum will provide a more complete resolution of the matters?

4.  In what order were the proceedings instituted?

5.  What stage are each set of proceedings up to?

6.  What costs have the parties incurred in each set of proceedings?

7.  The connection of the parties and their marriage with each of the jurisdictions and the relief that is available in each of the jurisdictions?

8.  The parties’ resources and understanding of the language – for example, can the parties participate in the proceedings on an equal footing? and

9.  The general nature of the case, taking into consideration the true nature and full extent of the issues involved.

The purpose of the above is not to compare the two jurisdictions or consider which is more appropriate; rather, the FCFCOA is to consider whether it is clearly an inappropriate forum having regard to the above.  If the Court finds it is clearly an inappropriate forum, it will be required to grant a stay of its proceedings.

However, if the stay application is denied, the FCFCOA will then consider any application for an anti-suit injunction.  Where the proceedings are the same (i.e. seek orders with respect to the same subject manner), the FCFCOA must give consideration to whether the continuation of duplicated proceedings is likely to be vexatious or oppressive.  Where the answer is yes, the FCFCOA may consider making an anti-suit injunction preventing the continuation of the other court proceedings.

Issues of forum can be complex.  It is important that the issue of forum is raised early, and without delay.  If you think this issue is applicable to your family law matter, you should seek advice from a specialist family lawyer without delay. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Can I get Orders dealing with overseas assets as part of my Property Settlement?

In this day and age, it is not unusual for people going through separation to hold overseas assets. They may have emigrated to Australia after building up assets in another jurisdiction, or travelled and lived overseas for a period of time. Sometimes people just choose to invest overseas. These assets can include overseas pensions, real estate, shares, companies and bank accounts. Regardless of how the assets came about, if they are owned by people who are going through a family law settlement they will likely need to be address in some way.

While it may sound a little odd. Australian Courts do have the power to make Orders dealing with assets held overseas if the Court decides that it is appropriate to do so. This is because section 31(2) of the Family Law Act gives our Court power to make Orders about ‘things’ and ‘people’ outside of Australia. The Orders will not be directed specifically to the asset, but rather to a party to the proceedings – requiring that person to do something with the asset, like transfer it to someone else. Sell it and disburse the proceeds in some way. Or even just to retain it in their own name.

Even though the Courts do have that power, dealing with overseas assets in a property settlement can still be a tricky area of family law if one person does not want to ‘play ball’ with the process. The first problem you may encounter if the other person is being evasive or not properly disclosing their holdings is proving that the asset exists at all, and then after you have done that, establishing precisely how it is legal owed. Once that has been done, you will need to establish what the asset is worth. This can mean obtaining valuations from afar, which can be logistically difficult and expensive. These issues can usually be worked out, but it can take some time.

Perhaps the most significant issue that people can run into in this area is deciding what to do once and Order has been made about overseas assets, but the person who is supposed to do the thing – e.g., transfer the asset, sell the asset, simply refuses. Some overseas jurisdictions will recognise and Australian Order and enforce it as if it had been made in that country, but other jurisdictions will not – it is up to each country. The Court may try to avoid this issue altogether if there are enough assets held within Australia to simply assign the overseas assets to the person who already holds them, and giving the other person a greater share of the Australian assets instead. Whether this is appropriate will of course turn on the particular facts of each case.

If you or your former partner own assets overseas and you are going through a property settlement, or think you might be in the future, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Anna-Kate Visser