Divorce creates a great deal of stress and angst even when the parties are living in the same country. But when one party is overseas, the issues can become more complicated and the level of anxiety can be heightened. The division of assets, particularly real estate and subsequent propertly settlements, can be difficult.
Divorcing Overseas; Recognized in Australia
First, it is important to note that if you are divorcing overseas, your divorce can be recognised in Australia for the purpose of property you own jointly in Australia. Therefore, if the foreign Court that grants you your divorce does not provide for the distribution of assets you own in Australia, you can petition the Court in Australia for assistance with this division.
It is well known that any claim for property division in Australia must be made within twelve (12) months of the divorce Order. However, there is an exception for those who have divorced overseas in that the Order granted to them is not subject to this Australian rule. Therefore, if you divorce overseas and you still hold property together in Australia, you are not barred from requesting the Court’s assistance in the division of this property, even if the one-year mark from the Order granting the divorce has passed.
Divorcing in Australia; Property Ownership Overseas
In the case that you are divorcing in Australia but own property overseas, the answer as to how overseas property is divided is less clear. First, the couple must decide which jurisdiction they want to apply for their divorce. If they own property overseas and this grants them the legal right to divorce in that country, they may want to consider that option. It is possible the laws will be more favorable to both spouses in a jurisdiction other than Australia.
However, if you were married overseas but have a nexus to Australia such as:
- One party is an Australian citizen
- One of you or both of you have lived in Australia for the preceding 12 months
- You regard Australia as your home and intend to live there indefinitely;
you can choose Australia as your jurisdiction for your divorce. In making this decision you and your spouse will be subject to the laws as provided by the Family Court Act.
When dividing property owned overseas an Australian court will look to many of the same factors they use when dividing property owned in Australia.
Divorcing in Australia; One Spouse is Overseas
In addition, if you live in Australia and your partner is overseas, as long as one of you meets the requirements noted above, you can proceed with filing for a divorce in Australia. But, it is important to keep in mind that if your spouse is overseas and you own property overseas, you spouse may contest the filing for divorce in Australia based upon an available jurisdiction in another country. Your spouse may want to make this decision because the laws are more favorable to them in a different jurisdiction. In this case, you will need to do some research to see if the foreign jurisdiction they are proposing will benefit you likewise.
When trying to decide which jurisdiction is most beneficial you should consider;
- Laws for the division of financial assets
- Child Custody factors
- Spousal support guidelines
- Division of superannuation
- Enforceability abroad
- Real property owned overseas
- Costs associated with the jurisdictions processes
- How the Court will handle child/family disputes subsequent to the Divorce Order if any arise
If you are divorcing overseas, or if you have a spouse that is overseas during the duration of the divorce, it is important to seek legal advice regarding the available jurisdictions for your proceeding and the legal consequences of your eventual outcome. You must do this analysis for each of the jurisdictions you are considering. This is not a project that is encouraged sans the assistance of a Solicitor who specializes in overseas divorce proceedings. Therefore, it is highly recommended that if you are considering divorcing overseas, or you are divorcing a spouse that is residing overseas, you seek legal counsel prior to beginning the process.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 780 770.