From both an emotional and a practical standpoint, getting divorced is seldom easy. It can be especially challenging if you and your spouse are from different countries, or if one of you lives abroad. Here’s what all Australians should know about international divorce.
First things first: is your marriage recognised here?
If you got married in another country but you want to get divorced in Australia, the first legal issue that must be addressed is whether your marriage is recognised here. Although a marriage that occurred overseas can’t be registered here, you should still have a foreign marriage certificate. That can be used as proof that the marriage occurred.
In the context of Australian divorce proceedings, any overseas marriage certificate written in another language must be translated into English. Furthermore, this must be done by a registered translator. Finally, both the marriage certificate and translation should be attached to an Affidavit.
In general, a marriage that occurred abroad will be recognised here if you can provide the proof detailed above and:
- It is deemed legal in the country where it took place;
- it would have been considered valid under Australian law had you been married here.
However, any of the following conditions bar recognition of a foreign marriage in Australia:
- if either of you were still in another, legally recognised marriage when you married each other;
- if either or both of you are domiciled outside of Australia and younger than 16 years of age;
- if the two of you are closely related (to an extent that marriage is legally prohibited) or there is no mutual consent (one of you has been forced into the marriage).
Eligibility for a divorce in Australia if you or your spouse are living abroad
Assuming you got married abroad and your marriage is recognised here, filing for divorce in Australia is relatively straightforward – as long as both of you are currently living here. But what if one of you now lives in Australia and the other lives overseas? You can still apply for a divorce in Australia if either one of you:
- Considers Australia as your home and intends to live here indefinitely;
- is an Australian citizen by birth, descent or by grant of Australian citizenship;
- usually lives here and has done so for 12 months prior to filing for divorce.
Keep in mind, however, that you must still provide proof that you and your spouse have lived separately and apart for at least 12 months. Furthermore there must be no reasonable possibility of reconciliation and resumption of married life. Remember, it is possible to live together in the same home and still be separated.
Deciding where to get divorced
Now that we’ve established if you can file for divorce in Australia, the next question is whether this is the best option for you. The answer is, it depends on your unique circumstances. Generally speaking, however, there are serious legal and financial issues to consider when making this decision.
Let’s say, for example, that you’re trying to decide whether to file for divorce here or in a European country. What are the legal pros and cons?
Well, to begin with, Australian law recognises de facto and same-sex couples. It also allows for the division of property when a relationship fails. By comparison, European countries tend to have fewer rights for de facto partners regarding the division of property when a relationship is no longer viable.
Secondly, Australian courts make binding property orders pertaining to any property held by the parties. This means any such orders would apply to property in Australia and abroad. While some European countries also do this, others don’t. In fact, many European courts limit property orders to property located in their country.
Finally, premarital agreements in some European countries may be considered binding. As such, courts may not have jurisdiction or authority to change the terms of the agreement. This may be true even if:
- The terms are grossly unfair;
- one party did not seek independent legal advice prior to entering the agreement;
- a sudden change in one or both of your personal circumstances rendered the agreement unfair or unjust.
Other issues of concern in this context are how courts in European countries handle financial disclosures and spousal maintenance.
Giving you the information you need to make an informed decision
One of the most important things we do as family lawyers is, we give our clients the information and tools they need to make informed decisions. If you have questions or concerns about international divorce, our family law team will provide comprehensive legal advice tailored to your situation. Depending on your unique circumstances, we can address:
- Tax implications associated with international divorce;
- how long it will likely take to get divorced in another country;
- whether or not the courts in another country can grant protective orders;
- the extent to which foreign divorce laws could adversely affect someone of a specific gender or someone in a de facto relationship;
- the extent to which the laws in some European countries may influence where divorce proceedings are filed.
If you need advice or guidance about how we can help facilitate your international divorce, contact trusted divorce and family law specialists Arbon Legal Group today on (07) 5562 0444 or info@arbonlegal.com.au.
