Effect of Overseas Divorce on Australian Propety Settlement

by Michelle McDermott on August 1, 2014

Michelle McDermott

Many families living in Australia have property both here and overseas. What happens if the parties choose to obtain a divorce overseas? Does that have any effect on the parties to apply for a property settlement or spousal maintenance in Australia? A recent decision of the Full Court of the Family Court of Australia discusses this very issue.

In Anderson & McIntosh (2013) FLC 93-568, the parties were married in Australia in 1988, had been living in country B since 2006 and separated there in 2009. The parties divorced in country B in 2010 and at the same time, Orders by were made in country B with respect to the parties' property in that country. No Orders were made with respect to the parties' property in Australia. The Wife then applied for a property settlement in Australia more than 12 months after the parties' divorce in country B, in relation to the parties' property in Australia. The Husband argued that the Wife had to seek leave to make such an Application. The Court at first instance dismissed the Husband's argument. The Husband then appealed to the Full Court.

The Full Court held that an overseas divorce, whilst recognised under Australian law by s.109 Family Law Act 1975 ("the Act"), does not have the same effect on the rights of the parties under the Act as an Australian divorce. Pursuant to an Australian divorce, parties have 12 months from the date the divorce is made final within which to apply for a property settlement in Australia. After that period, leave is required from the Court in order to commence proceedings. An overseas divorce, however, is not a "divorce order" within s.44(3) of the Act. Therefore, even if the parties have been divorced for more than 12 months, leave is not required to institute Australian property or maintenance proceedings. The Husband's appeal was dismissed.

It is vitally important that when a family has assets in more than one jurisdiction, that advice is obtained from each jurisdiction with respect to a party's family law rights and entitlements. Only then can can an informed decision be made as to the most appropriate way forward and what steps need to be taken.

Armstrong Legal is well able to assist in cases where there is an international element. If you require such advice, do not hesitate to contact our office on (02) 9261 4555.

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