Marriage Overseas – Divorce and Property Settlement » Pearsons Lawyers

Marriage Overseas – Divorce and Property Settlement

  1. How do I get a divorce?
  2. Can I do a property settlement and what about the assets?

DIVORCE

You can apply in Australia for a divorce if you were married overseas if you can satisfy the court that you live permanently in Australia and that you have lived separately and apart from your spouse for at least 12 months with no reasonable chance that you will get back together. It is possible to live together in the same home and still be separated under the same roof.

To apply, you need to complete an Application for Divorce and file it at the Court with a copy of your marriage certificate. If the certificate is in another language, you need to file an English translation of it together with an affidavit from the person who translated it.

The affidavit must set out their qualifications to translate and attach a copy of the original marriage certificate and the translated marriage certificate.

There will be an application fee payable at the time of filing your documents. You can complete the application yourself or ask a lawyer to do it for you. You can make a sole application, or you and your spouse can make a joint application.

To be eligible to apply, either you or your spouse:

  • must consider Australia as your home and intend to live here indefinitely, or
  • must be an Australian resident, or
  • must be an Australia citizen (by birth, descent, or by a grant of citizenship), or
  • usually live in Australia and have lived here for 12 months immediately before filing your application

AND

  • have been separated for a least 12 months and 1 day including under the same roof.

PROPERTY SETTLEMENT & ASSETS

The issues regarding how assets are dealt with after a relationship breaks down is a common question, particularly where those assets are in different countries.

The Family Court of Australia and the Federal Circuit Court of Australia determine how property obtained through a relationship is to be divided at separation.

There are a number of considerations to be taken into account such as:-

  1. Whether there should be any alteration of the parties’ interests at all;
  2. Determining the net asset pool of the parties;
  3. Assessing the financial and non-financial contributions of both parties;
  4. Assessing various adjustment factors including the future needs of the parties; and
  5. Considering the practical effect of the proposed property settlement and whether the settlement is just and equitable for both parties.

If you have assets overseas, they will generally be taken into account in any settlement of property between you and your former spouse or de facto partner in the event of the breakdown of your relationship.

The word “property” is defined in section 4 of the Family Law Act 1975 as “property to which those parties are, or that party is, as the case may be, entitled”. This definition does little to circumscribe the class of legal interests that might count as “property.” Accordingly, court provides a more precise definition.

If you or your former partner have an asset overseas, the asset will be counted as “property” in your “property settlement” even if you consider that your spouse has no entitlement to it, or if you believe that the foreign jurisdiction will take no notice of what the Courts in Australia will do or say about the matter.

The court has jurisdiction to make orders concerning international assets by virtue of section 31(2) of the Family Law Act which states that the jurisdiction of the Courts “may be exercised in relation to persons or things outside Australia and the territories”.

The duty of disclosure

In any property settlement proceedings under the Family Law Act there is a duty to make full and frank disclosure of your financial affairs, including what assets you own and financial resources (for example a right to an overseas pension).

This extends to assets or financial resources you may have overseas.

If necessary you may also need to produce documentary evidence such as copies of the relevant property records of title, valuations and so on.

A failure to disclose overseas assets will probably leave no alternative to the Australian Family Courts but to undo a settlement agreement or final property order, and to open up the proceedings all over again. Failure to disclose is fraud.

Jurisdiction issues

It is important to note that if the foreign assets are significant compared to the Australian assets, issues can arise about which jurisdiction should apply (i.e. the Australian jurisdiction or the overseas jurisdiction)

When dealing with international family law matters in relation to property proceedings, the two main issues are:

    1. Where the parties are Australian residents, proceedings are usually dealt with in the Australian Courts even if one or both of the parties may not be an Australian citizen.
    2. Jurisdiction and the appropriate forum are usually determined by the “closest connection” test which means that the country in which the separated or divorced parties have the closest connection (i.e. where most of their assets are).

The Australian Family Courts may make orders in relation to property in an overseas jurisdiction.

However, property settlement orders made by the Australian Family Courts may not be automatically recognised and enforceable in the overseas jurisdiction.

Consequently, problems may be experienced in enforcing the property settlement orders internationally.

For this reason, it is usually preferable to deal with assets, including foreign assets assuming they have been properly disclosed, where their ownership and value is adjusted as between the parties in their overall settlement, without having to actually deal with those assets by way of a Court Order that may well not be binding in the foreign jurisdiction.

Pearsons are the expert family lawyers in Melbourne. If you would like advice on your Family Law matter, please contact one of our lawyers at Pearsons Lawyers for your free consultation on 1300 699 688.

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