Were you married overseas? Are you wondering if you can get divorced in Australia?
This article aims to answer the question and provide general information on some of the issues you might encounter.
IS YOUR FOREIGN MARRIAGE RECOGNISED IN AUSTRALIA?
Divorce is the formal legal ending of a marriage. It is separate and distinct from a property settlement and parenting arrangements after the breakdown of a marriage.
An overseas marriage will be recognised in Australia if it is legally valid in the country where the marriage took place, and the marriage would have been valid under Australian law if it had occurred in Australia.
To get a divorce in Australia, the marriage must be valid. Whilst an overseas marriage cannot be registered in Australia; a foreign marriage certificate is generally sufficient proof that marriage occurred. For a divorce application, the foreign marriage certificate will need to be translated into English by a registered translator with the translation attached to an Affidavit.
GETTING DIVORCED IN AUSTRALIA
You could get divorced in Australia even if you were married overseas if you meet the criteria for a divorce and can demonstrate that you have a real connection with Australia. For further information on the requirements for an Australian divorce, please read our post ‘How long does it take to get a divorce in Australia?’.
If you were married in Australia, this is not sufficient alone to establish the jurisdiction grounds for an Australian court to grant a divorce. Whether you were married in Australia or overseas, you must meet the jurisdictional requirements set out in the Family Law Act 1975.
WHAT ARE THE JURISDICTIONAL REQUIREMENTS?
For the Federal Circuit and Family Court of Australia to have jurisdiction to grant a divorce, you or your spouse, at the time of filing the Application for Divorce, must demonstrate one or more of the following requirements set out in section 39 of the Family Law Act 1975. You or your spouse:
Is an Australian citizen.
Live in Australia and regard Australia as your permanent home; or
Ordinarily live in Australia and have done so for at least 12 months before the divorce application.
When applying for a divorce, you must provide as much information as possible to satisfy the court of the jurisdictional requirements, especially where neither you nor your spouse is an Australian citizen.
Suppose you are planning to file a sole Application for Divorce and intend to rely on your spouse’s connection with Australia; you will need to gather information and evidence about your spouse’s residency status. The procedures for collecting information can be complicated, especially if your spouse is unwilling to provide the required documents to satisfy one of the jurisdictional requirements.
IN WHICH JURISDICTION SHOULD YOU DIVORCE?
Suppose you and your spouse are living separately in different countries. In that case, you should seek professional legal advice on the best jurisdiction for you to commence divorce proceedings, as selecting the proper jurisdiction could provide strategic advantages in your property settlement and parenting proceedings. Appropriate legal tests must be applied to ensure that either party has a genuine connection with the foreign country to allow them to commence the proceedings.
For example, you may have no time restrictions to commence property settlement proceedings in a foreign country. Compared with Australia, you may only commence property settlement proceedings within 12 months of a divorce.
Here are some of the issues that you may wish to consider when assessing whether Australia or a foreign country is the appropriate jurisdiction for you to commence proceedings:
Whether the foreign orders are enforceable in Australia and the foreign country.
The location and magnitude of the parties’ assets.
The nationality and residency of your children.
The methods and procedures of seeking a resolution to parenting disputes between the countries.
The costs of legal proceedings.
The time that the Australian and foreign courts take to grant a divorce.
Whether the foreign court has any power to grant injunctive relief.
SEEKING LEGAL ADVICE
Each separation is unique and may have its limitations depending on its circumstances. When planning for a divorce, you should seek legal advice and speak with a family law professional about your matter.
At Yorkins Legal, we aim to give our clients a hassle-free divorce. We can assess your circumstances to ensure you satisfy the eligibility criteria for a divorce. Our professional team can help prepare all essential documents to be provided to the Court with your application, even in the complicated situation where your spouse is unwilling to provide the required documentation to show their connection to Australia. We also have an established network of professionals, including registered translators that can prepare a translation of your foreign marriage certificate and their Affidavit to be attached to your Application For Divorce as required.
Our initial consultations are free, confidential and can be discussed over the phone or in person. We offer after-hours consultations and mobile service for our clients’ convenience. We will meet you wherever it is most comfortable for you, whether at your home or office.
Contact us to speak with our friendly team today.
Author
Kai Yeung
Principal Solicitor
T: (02) 7255 2788
Disclaimer - The information contained on this site is intended only to provide a general overview of matters of interest and is intended to apply only within Australia. It does not constitute legal advice. Professional advice should be obtained from a Yorkins Legal professional before taking any action in relation to any information contained on this site.
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