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Married Overseas, Divorce in Australia (Understanding the Legal Process)

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married overseas divorce in australia

In an increasingly globalised world, many find love across borders. This can lead to international marriages. However, navigating divorce in Australia becomes crucial when these unions face challenges.

This article delves into the intricacies of the Australian divorce system. We compare no-fault and fault-based divorce mechanisms and highlight the considerations for those seeking to dissolve an international marriage.

We also discuss jurisdictional dilemmas and the unique challenges faced by same-sex couples. Dive in to understand the multifaceted landscape of international divorces in Australia.

Key takeaways

  1. The article discusses the complexities of divorcing in Australia when married overseas.
  2. Australia practices a no-fault divorce system, while other places still use fault-based divorce.
  3. Australia’s Federal Circuit and Family Court checks the validity of overseas marriages using criteria like age, consent, and existing marriages.
  4. If married in Australia but divorced overseas, Australia recognises the foreign divorce if specific criteria are met.
  5. Australian courts may reject international divorces if they violate natural justice or public policy principles.
  6. Jurisdictional issues arise when couples initiate divorce in different countries. Australia uses the ‘clearly inappropriate forum’ test.
  7. Same-sex international divorces face challenges in countries without legal recognition. This affects their dissolution and acceptance in Australia.

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Is overseas divorce recognised in Australia?

This article will introduce you to the best ways to split when married overseas divorce in Australia. The world is more interconnected now than ever before. It’s increasingly common for people to move to a different country and start their lives anew.

However, this comes with implications for marriages and divorces. Recognising marriages is relatively straightforward when moving between countries. But divorces can be a little more complex. You should expect this difference. Disentangling the lives of divorcing couples is hard enough without introducing foreign jurisdictions.

How do the relevant laws across borders play into the matter, and what should you consider before applying for a foreign divorce?

Divorce in Australia and Overseas

Divorce in Australia, along with most countries, has a no-fault divorce system. This system means you are not required to demonstrate fault as a justification for divorce. You only need to assert that the marriage has irretrievably broken down.

Fault-based divorce is still available in certain territories, such as many US states. Fault divorce was also mandated in England and Wales until they repealed it in April 2022. This system requires some evidence of unreasonable behaviour to justify a divorce. Proving fault can affect specific outcomes like the terms of a property settlement or spousal maintenance.

couple-having-communication-problems (1)

No-fault divorce vs. fault divorce

Certain places have found a fault-based system useful for various reasons. Some reasons may include the following:

  1. Moral Accountability: Fault-based divorce holds individuals morally accountable for their actions. One spouse may commit adultery, abuse, or abandonment. A fault-based system can ensure they are held responsible for the marriage breakdown.
  2. Deterrence: It’s possible to be found at fault in a divorce proceeding. This might deter spouses from engaging in certain behaviours, such as infidelity or abuse.
  3. Clear Grounds for Divorce: A fault-based system provides clear and specific grounds for divorce. This can make the process more straightforward in cases where the fault is evident.
  4. Encouragement of Reconciliation: A fault-based system makes divorce more challenging to obtain. This might encourage couples to seek counselling or mediation to reconcile their differences.
  5. Protection Against Hasty Decisions: Requiring proof of fault can ensure that couples don’t make hasty decisions to divorce without good reasons.

However, fault-based divorce has been replaced with the no-fault alternative in most places due to factors including the following:

  1. Promotion of Privacy: No-fault divorce lets couples keep their reasons for divorcing private. Couples don’t have to disclose them in a public court setting.
  2. Efficiency in the Legal System: No-fault divorces can be processed more quickly and efficiently. This reduces the backlog of cases in the court system.
  3. Reflecting Societal Changes: Societal views on marriage and divorce have evolved. No-fault divorce reflects an understanding that marriages may end without one party being to blame.
  4. Encouraging Amicable Resolutions: Without the need to lay blame, couples might be more inclined to work together. This can help resolve property division, child custody, and support issues.
  5. Better Outcomes for Children: Prolonged and contentious divorce proceedings can harm children. A no-fault divorce can lead to quicker resolutions and less animosity between parents. This can benefit the children involved.

Married Overseas and Divorced in Australia

Let’s consider how Australian law would approach a divorce application from a couple married overseas. Marriage and divorce are presided over by the Federal Circuit and Family Court of Australia. This Court previously existed as two separate entities: The Federal Circuit Court and the Family Court of Australia.

The first issue is whether Australia recognises your marriage. You cannot register an overseas marriage here, but that isn’t necessary. Your foreign marriage certificate from a competent authority is enough proof that the marriage occurred and is valid.

Certain factors will delegitimise a marriage in the Australian Family Court’s eyes, namely:

  • One party to the marriage is legally married to someone else;
  • At least one of the parties is not of marriageable age;
  • The parties are too closely related;
  • At least one of the parties did not give proper consent.

If these objections are irrelevant, your marriage will be valid in Australia. Once you establish your marriage’s validity, you must complete an application for divorce. You then file the marriage certificates and the divorce application with the Court. The certificate may be in a foreign language. In this case, you must also file an English translation with an affidavit from the accredited translator who translated it.

What if you married in Australia, and you or your spouse applied for divorce overseas?

divorce 1

Married in Australia, Divorced Overseas

In many marriages, one party is an Australian citizen and the other a foreign citizen. This situation raises specific issues. Consider the legality of that spouse returning to their country of origin and applying for a divorce through its legal system.

According to the Family Law Act 1975, foreign decrees like divorce are valid in Australia if you meet particular requirements. The Australian Courts expect that one party has sufficient connection with the place where you seek the divorce. This connection means that you or your spouse are ordinarily residents in that jurisdiction. In addition, you have been so for at least one year before beginning divorce proceedings. You may also have last cohabited with your spouse in that jurisdiction.

Australia will generally accept the divorce’s validity if you meet those criteria. You must also complete the divorce under the laws of that country.

Invalidating an international divorce

Some circumstances may lead the Australian Court to reject an international divorce order. The Family Law Act 1975 states that foreign divorces will be invalidated if:

  • A party to the marriage was not afforded natural justice under the rules of private international law;
  • Recognition would be contrary to public policy.

Natural justice is a legal principle concerning procedural fairness. Suppose you face a ruling instituted against you. It requires you to access information relevant to the proceeding and get the opportunity to respond. For example, the legal system denied natural justice for you if it didn’t advise you of a divorce hearing. 

A divorce contrary to public policy means the Court believes it would harm the public good to recognise its validity. 

Deciding on jurisdiction

The regulations governing divorce proceedings and issues like property settlements and parenting agreements can differ between jurisdictions. It’s crucial to carefully consider which jurisdiction will benefit you the most. For example, some jurisdictions have generous spousal maintenance provisions that may assist you. This is assuming you have the necessary connections to that location.

Countries apply different tests to determine the most appropriate jurisdiction for a family law matter. 

couple will go on the divorce proceedings

Clearly inappropriate forum (forum non-convenient)

Couples of different nationalities may institute divorce proceedings in separate jurisdictions. Australia may be one of those jurisdictions. If so, one party may file an anti-suit injunction that prevents a person from pursuing legal action, whether in a local or foreign territory. Australia uses the ‘clearly inappropriate forum’ test to determine whether the Australian Court should preside over the case.

The Australian Court will disavow its jurisdiction over the proceeding in certain circumstances. Specifically, if the Australian Court considers a local hearing “seriously and unfairly burdensome, prejudicial or damaging” to the opposing party. The Court has broad discretion when applying this test and may consider many factors including, but not limited to:

  • The value of assets held in the respective jurisdictions;
  • How connected each party is to each jurisdiction;
  • Where each party is residing;
  • Which jurisdiction is best able to resolve the case completely;
  • The cost of accessing relevant evidence and witnesses from each jurisdiction;
  • If Australia recognises orders from the foreign territory in question;
  • If the couple has children, how will the proceeding affect them? Would they be required to move?

Clearly inappropriate forum vs. more appropriate forum

There is contention over whether Australia’s approach to jurisdictional issues differs significantly from the United Kingdom’s test. The UK uses a similar process established through the landmark Spiliada Maritime Corp v Cansulex Ltd decision.

While slight, Australia’s approach differs as it doesn’t just compare how appropriate each forum is. It requires the dissenting party to demonstrate that Australia is an inappropriate forum. Consequently, Australia prioritises its jurisdiction and places a higher burden on shifting family law proceedings elsewhere.

First come, first serve

Certain European countries have simplified the process to resolve jurisdictional conflict. Two countries within the European Union may have jurisdiction over the matter. The relevant factor is in which country you choose to commence proceedings. Once the proceedings are underway, that country will take responsibility for resolving the issue.

Same sex international divorces

The world has come a long way in its acceptance of same-sex marriage. Most developed nations have implemented legal reforms to recognise same-sex marriage and divorce. Their international recognition works no differently than traditional marriage. However, countries without legal same-sex marriage may affect your ability to divorce in their jurisdiction and how they handle the process.

For example, Italy does not officially recognise same-sex marriage. Instead, it has opted to legalise same-sex civil unions. These unions provide most, but not all, the rights married couples enjoy. A same-sex couple may legally marry in Australia and then move to Italy. The Italian legal system will recognise their marriage as a civil union. Dissolving a civil union can occur immediately without a separation period beforehand. This lack of a separation period may raise questions about whether Australia will recognise such a divorce.

Russia has no procedure to recognise same-sex relationships formally. As such, it has no mechanism to dissolve a same-sex marriage that Australia recognises. Similarly, Japan has not legalised any form of same-sex union. However, several individual municipalities do provide limited legal protections. Therefore, same-sex couples cannot divorce in Japan through a legal channel Australia would accept.

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Let us help you with your family law needs

Marriage overseas and divorce in Australia can be complex. You may be separated and believe your spouse intends to apply for a divorce in a foreign country; don’t wait. Act before you lose your chance to have your case heard in the country you live. You should seek legal advice quickly.

If you would like to learn more about divorce, please take the time to read an article we wrote about ‘How to get a divorce in Australia’.

Thank you for reading this far. We hope this article has given better clarity to your current circumstances.

If you need help with family law matters, contact us for a free discovery call.

The above information is intended to be general advice only and is not a substitute for personalised advice. Because it does not consider your individual circumstances, it is not intended to be relied upon, and any loss or damage arising from any such reliance is disclaimed. Any financial or legal decisions should only occur after you have received tailored advice from a legal or financial professional.

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Luke Shanahan Family Law

Luke Shanahan

Principal

Luke Shanahan is the Principal Solicitor of Shanahan Family Law. Luke has been practising family law since 2008 and started his firm in 2014. He has three beautiful daughters and a supportive, gorgeous wife. In his spare time, Luke enjoys playing tennis and trips to the beach with family and friends. 

Luke is dedicated to providing the best possible legal representation for his clients. His experience and passion for family law set him apart from other solicitors. You only have to read their 5-star reviews to understand that.

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