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The process of obtaining a Divorce Order in Australia may appear drawn-out, especially to those eager to remarry.
An Application for Divorce cannot be filed in the Federal Circuit Court until the married couple have been separated for at least 12 months and there is no chance of reconciliation. Once the Application has been received by the Court, it is usually not determined by the Court for a further 2-3 months, and longer if the application is not ready to proceed for various reasons, such as issues with serving the Respondent or in circumstances where a Response is field.
The Divorce Order does not become final for a further one month and one day after the Court makes the Order. At this time, a Divorce Certificate is issued to the parties and the parties are entitled to remarry.
Australia recognises Divorce effected in accordance with the laws of other countries provided that either of the parties to the marriage were ordinary resident, living in or a national of that country when they applied for the divorce order.
It may appear quicker or more cost effective to obtain a divorce order in another country. Some jurisdictions do not require parties to be separated 12 months before the application can be filed and in other jurisdictions, there is limited to no delay between filing an application and the application being determined.
It is understandable that separated couples are considering their divorce options outside of Australia, especially where a wholly online experience is on offer. However, obtaining a divorce from outside of Australia is not without risk.
In the matter of Betts & Hampson  FamCA 107, the Judge annulled the marriage between Mr Betts and Ms Hampson because Mr Betts was validly married to his former wife at the time he married Ms Hampson.
Prior to his marriage to Ms Hampson, Mr Betts sought to divorce his former wife, quickly. Mr Betts paid about $1,500 to website Divorce Fast who promise customers a divorce in one day granted from the courts in Mexico, no travel required. Whilst the website advertises that the Mexican divorce is recognised world-wide.
The Court accepted that Mr Betts believed that he was divorced from his former wife.
Neither Mr Betts nor his former wife were ordinary resident, living in or a National of Mexico when they applied for the divorce order. Further, there was no evidence that Mr Betts’ former wife was aware of the divorce proceedings and she had not been served with a copy of the divorce application, therefore being denied natural justice.
As the Mexico divorce order between Mr Betts and his former wife was not recognised in Australia, the Court found that Mr Betts was legally married to another at the time that he married Ms Hampson. Therefore the marriage between Mr Betts and Ms Hampson was not valid and must be annulled.
In Australia, a marriage in not valid if either of the parties to the marriage was lawfully married to another person at the time of the marriage.
Mr Betts was required to annul his marriage to Ms Hampson and subsequently obtain a divorce from his former wife from the Federal Circuit Court, making the online divorce process more costly and time consuming than obtaining a divorce in Australia in the first place.
Mr Betts’ experience should serve as a warning to people seeking a divorce, to make the appropriate application in the Federal Circuit Court the first time. The Application process is designed for parties to complete without legal assistance. However, if you require assistance or want somebody to take control of the process for you, contact our experienced family law team at Armstrong Legal.
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