In Australia, applying for divorce is an administrative process requiring an application to the Federal Circuit Court. Some people choose to seek the assistance of lawyers to manage this process while others are able to prepare their own application for divorce.
The application process is fairly straight forward. The Federal Circuit Court has excellent resources to assist those wishing to DIY a divorce application. Importantly, an application for divorce does not require to demonstrate that one of the spouses was at fault, e.g lack of commitment or unfaithfulness. However, one of the principal requirements to be eligible for a divorce is to demonstrate that you have been separated for at least 12 months.
Generally a number of questions arise in respect of the validity of a divorce effected in Australia or overseas. The following are some of the most common questions in relation to this issue.
Is my marriage recognised in Australia?
Generally, an overseas marriage will be recognised in Australia if the marriage is valid under the law of the country where the marriage took place. It is important to note, that if you married overseas, your marriage cannot be registered in Australia. The foreign marriage certificate, however, will be evidence that the marriage occurred. For the purposes of an application for divorce, you will need to have your overseas marriage certificate translated into English by a registered translator. The overseas marriage certificate and translation must be attached to an Affidavit in support of your divorce application.
If you married in Australia, you will need to register your marriage with the registry of births, deaths and marriages in the state in which the ceremony occurred within 14 days.
Marriages not recognised as valid under Australian law
A marriage will not be recognised as valid in Australia if:
either party is validly married to another person at the time of marriage
the parties are domiciled outside of Australia and are under the age of 16 years
the parties are within prohibited degrees of personal relationships or no real consent to the marriage is given.
Applying for a divorce in Australia if you or your spouse is living overseas
You can apply for a divorce in Australia if either you or your spouse is overseas and meet the following requirements:
regard Australia as your home and intend to live in Australia indefinitely
are an Australian citizen by birth, descent or by grant of Australian citizenship
ordinarily live in Australia and have done so for 12 months before filing for divorce.
You will need to satisfy the court that you and your spouse have lived separately and apart for at least 12 months and that there are no prospects of reconciliation. It is important to note that you can be separated and still be living under the same roof. This does not prevent you from applying for divorce as long as you meet the 12 months requirement.
Separated and living in different countries
You should seek legal advice if planning to file for divorce in a foreign country. The laws of some countries in relation to financial claims may be limited whereas an alternative jurisdiction may take a more favorable approach to financial claims.
Disputes in relation to parenting may also be approached differently in other jurisdictions, and therefore, it is crucially important to seek legal advice before filing proceedings in respect of parenting disputes.
Issues that you should consider in consultation with your legal adviser before deciding on the appropriate jurisdiction include:
time period to obtain a divorce
financial implications of divorcingn
the approach of a foreign court in respect of children disputes
the power of a foreign court in respect of injunctive orders to prevent assets from being moved out of the country and outside the jurisdiction of the court.
legal costs and court fees associated with divorce and family law proceedings
ability to enforce overseas court orders, i.e. registering an order or having mirror orders in another country.
Australia recognises foreign divorces as valid if ‘at the date’ of the divorce proceedings one of the spouses or both had sufficient connection with the country where the divorce took place, for instance, by virtue of time spent residing in that particular country or nationality. On the other hand, Australia may refuse to recognise a foreign divorce if it is contrary to public policy or if one of spouses was denied natural justice, i.e. was not notified for the divorce hearing.
Do you need assistance?
If you are thinking about divorce and your marriage raises cross-border or cross-cultural issues, please do not hesitate to contact Cifuentes Lawyers on 0477 269 867 or email firstname.lastname@example.org
This article is intended as information only and does not constitute legal advice.