How your international divorce operates in the Australian family law system – Divorce

Irina Baranova

In this video, CGW family law partner Justine Woods talks about
international divorces and some basic principles of international
marriage and divorce law.

VIDEO TRANSCRIPT

Hello, hello, everyone. I’m Justine Woods. I’m the
family law partner here at Cooper Grace Ward. Today, I’d like
to talk about international divorces given how multicultural our
society is, how migration is part of our economic recovery post
COVID and if ever, we can leave our homes and our states, there
ought to be more of it. I thought it might be helpful if we talk
about some very basic principles of international law.

So, in relation to family law, and in particular marriage and
divorce, the general basic rule is if a ceremony or a decree is
binding in the country in which it occurred, in a legal sense, it
will be binding here in Australia. Now there’s a long series of
cases in the family courts history, where it’s been called upon
to determine has a particular ceremony or a particular certificate
that took place overseas, is it going to be recognised here? So, a
lot of consideration has been given to do certain parties equate,
or celebrations equate to a marriage, for example? No, they
don’t. If it’s a legal ceremony, in its country of origin,
which is binding in that nation, then it’s likely going to be
binding here. Now, it will be binding here. The same applies to
divorces. But with some exceptions, because divorce is a very
different concept, depending in which part of the world you’re
obtaining one.

So, here in Australia, divorce dissolves the marriage and if
you’ve still got love left to give, you can remarry. So
it’s more about status, and dissolving the underlying
relationship in a legal sense. In Australia and most of the common
law countries, but not all, it’s independent from an agreement
about children, and independent from finances. So, here in
Australia, you can be divorced after 12 months and one day of
separation. If you haven’t been married, for two years by that
point, there are some other requirements. But a divorce can be
granted even if you haven’t got an agreement or started
proceedings, about your children or about your wealth. Elsewhere in
the world, those things must happen together or can happen together
and they’re not time limited. That is there’s in a no fault
system such as Australia, it’s really only passage of time that
is the ground that shows irretrievable breakdown of marriage. In
other cases, one party simply needs to ask for a divorce and that
may or may not then be accompanied by a series of financial
orders.

So again, over the years, there have been lots of cases about
what that actually means. Now, one case has recently been decided
by the High Court. It’s a family court case, originally, where
the husband obtained a divorce overseas in a jurisdiction in which
property settlement orders were effectively made. At least that was
the husband’s argument. It basically returned a dowry and some
religious items to each party, and an otherwise attempted to
dissolve all aspects of the relationship between them. Now after a
very long period of time, and an examination of more than years of
jurisprudence, the High Court has found that in that instance,
because the wife in that case, there was a divorce made overseas,
it purported to say that there could be no further claim for any
financial orders. The wife who was living in Australia then sought
to rely on the Australian system to apply for property settlement
and for spousal maintenance. The court found in this case, because
there was no examination whatsoever of issues that we here would
recognise as property settlement or maintenance issues, that that
oversees divorce, did not prevent the wife and the orders made
about the financial matter, prevent her from applying here. So that
effective, all that really means is that a divorce, and a property
settlement order from overseas may not work as both and that then
you may have to give consideration both as the person who wants to
rely on that international order, or perhaps is the person seeking
to challenge it. What was the underlying process conducted overseas
and are you astop which means legally, you can’t proceed
contrary to that original order.

So, it’s not as straightforward as it first seems and
it’s I think it’s going to be an increasing area given so
many people are travelling so it’s in the past travelled so
extensively. Maybe coming back to Australia, maybe migrating here
as a place somewhat sheltered from COVID. So, this is a rather
technical area to be thinking about between the hours of midnight
and dawn, but there are many people to whom it applies and if
you’d like to talk about these issues further, you’re very
welcome to contact us.

©
Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in
Brisbane.

This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
Lawyers.

https://www.mondaq.com/australia/divorce/1198338/how-your-international-divorce-operates-in-the-australian-family-law-system

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