Divorce can be a complex and emotionally challenging experience, and when it involves international elements, the process can become even more complicated. International divorce in Australia deals with cases where one or both spouses reside or have property in different countries. This article provides an overview of key considerations and processes for international divorce in Australia, including jurisdiction, applicable laws, child custody, and property division.
Jurisdiction for International Divorce in Australia
In Australia, the Family Law Act 1975 provides the legal framework for divorce, property settlement, and parenting arrangements.
For an Australian court to have jurisdiction to grant a divorce, at least one of the following criteria must be met:
- Either spouse is an Australian citizen.
- Either spouse is domiciled in Australia (Australia is their permanent home).
- Either spouse has been a resident of Australia for at least 12 months before filing the divorce application.
If these conditions are satisfied, an Australian court can hear and grant a divorce application even if the marriage took place in another country and notwithstanding that one or both parties are not residing in Australia. For example, the party making the divorce application is an Australian Citizen and currently based overseas for work.
Often, for Australian citizens residing overseas, there are benefits in applying for divorce in Australia. Divorce under Australian law is a relatively uncomplicated process requiring only that the parties be separated for at least 12 months. There is no requirement for a lengthy separation or to show “fault” or “wrongdoing” on the other party as may be required in many overseas jurisdictions.
Recognition of Overseas Marriages and Divorces
Australian courts recognise marriages that were legally performed overseas as long as they meet the legal requirements of the country where the marriage occurred. If a couple has divorced overseas, the Australian court may recognise that divorce.
However, recognition of an overseas divorce in Australia does not mean that Australian courts will accept the financial and parenting arrangements decided abroad. Australian courts may conduct separate proceedings if either spouse seeks adjustments to property division or parenting arrangements in Australia.
Property Division and Financial Settlements
Australian courts follow a four-step process to assess property division:
- Determine the parties’ combined property pool.
- Assess contributions made by each party (financial, non-financial, and homemaker contributions).
- Evaluate the future needs of each party, considering factors such as age, health, and income capacity.
- Determine if the proposed division is fair and equitable.
Overseas held properties may complicate this process. Australian courts can exercise jurisdiction over foreign assets; however, enforcing Australian orders in another country may depend on international cooperation and the legal framework of that country.
Parenting Arrangements and Child Custody
When children are involved, Australian courts will prioritise the best interests of the child, regardless of the international aspect of the divorce. Child custody arrangements in international divorce cases may involve additional complexities, especially if the parents reside in different countries or when one parent wishes to relocate overseas with the child.
Under the Hague Convention on the Civil Aspects of International Child Abduction, Australia cooperates with other countries to prevent child abduction by a parent. If one parent takes a child overseas without the other parent’s consent or a court order, they could be required to return the child to Australia. This protection applies only to countries that have adopted the Hague Convention, so caution is required when dealing with countries outside this framework.
Spousal and Child Maintenance
Australian courts may issue orders for spousal and child maintenance, even if one spouse resides overseas. The court will consider factors such as income disparity, age, and earning capacity when assessing maintenance needs. To enforce such orders internationally, Australia has reciprocal arrangements with several countries for the enforcement of child and spousal maintenance orders. However, enforcement may be challenging when dealing with countries that do not have reciprocal agreements with Australia.
Legal and Practical Considerations
Given the complexity of international divorce, it is essential to be aware of the legal and practical implications of property, custody, and support arrangements across different jurisdictions.
For all enquiries, please get in touch with the family lawyers at Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiries@robertsonhayles.com or via our contact form on our website, and we will be happy to assist you with your family law matter.