If you got married overseas and want to file for divorce in Australia, the first legal issue to address is whether your marriage is recognised here. A marriage that took place overseas cannot be registered here, but your foreign marriage certificate is sufficient proof that the marriage occurred.
For this matter, you will need to complete an Application for Divorce and file it at the Court with a copy of your marriage certificate and if the certificate is in a foreign language, you will also need to file an English translation of it together with an affidavit from the person who translated it.
But what if you got married in Australia, and your spouse applies for divorce overseas?
Generally speaking, it’s the country where the first person applies for a divorce which will determine the court that will deal with the divorce. This is often colloquially referred to as ‘a race to the court’s door’.
As a result, you should seek legal advice quickly as to whether the divorce will be recognised in Australia, about the implications for doing so and also to ensure that you commence proceedings in the jurisdiction of your choice.
Whether the Australian Family Courts will recognise an international divorce generally depends on whether either or both of the divorce parties had a sufficient connection to the country or jurisdiction the divorce was granted in. For example, if the divorcing parties were resident for one year before the date of issue and were given an opportunity to respond to the divorce application (so that they were made aware of the divorce application before the order was made).
An international divorce may not be recognised if it is contrary to public policy or one of the parties had been denied natural justice like not getting a notice of the hearing. That said, even if the divorce is recognised you may still have a claim on the marital property.
Different countries have different requirements regarding the issue of divorce, for example:
- In Australia, we have a ‘no fault’ divorce system in place. You must however be separated for 12 months and the marriage must have irretrievably broken down.
- In England and Wales, a fault based divorce such as unreasonable behaviour or adultery can be issued immediately or a no fault divorce can be issued either after two years of separation by consent or after five years of separation without consent.
It is worth noting that European countries have laws in place to avoid and resolve jurisdictional conflict.
Shanahan Family Law offers a free consultation to support you and enable you to be more informed about your rights. Call or email us to schedule a time.