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Is Australia The Right Jurisdiction to Determine Property Matters For Me?

With international travel and international investments increasing on an exponential level, it is not uncommon for parties to be able to commence proceedings in more than one country. International mobility has produced a volume of family law cases where the first question the Court must determine is whether Australia is able to determine property, parenting or divorce proceedings. Consider this example- a couple enter into a prenuptial agreement in one country, but live for the majority of the relationship in another country where the majority of the assets are held. Is it more appropriate for the parties to apply for property Orders in the country where the prenuptial agreement was executed, or the country where the majority of the relationship took place?

The focus of the enquiry is on the inappropriateness of one Court (or country) rather than the appropriateness or comparative appropriateness of another Court (or country). That is, the role of the Court is not to compare the competing available forums. Instead, the question for the Court is whether Australia is “clearly an inappropriate forum.”

The first step a Court must determine is whether the Court has jurisdiction to hear the matter. At the date of Application, either of the parties must be an Australian Citizen, ordinarily resident in Australia or be present in Australia.

If that initial enquiry is satisfied, the Court must still determine whether or not Australia is a “clearly inappropriate forum”. Under this secondary enquiry, some factors that the Court may consider include:

  • Whether or not there are property proceedings on foot in another jurisdiction?
  • Whether the parties reside in Australia?
  • Whether the parties conducted their relationship in Australia?
  • Whether there are any Australian assets held by either party or both of them jointly?
  • Whether there are any assets held overseas and whether Australia has jurisdiction to make Orders in respect to those international assets?
  • Will any witnesses or experts be required to travel overseas in order for the matter to be heard and if so, at what cost?
  • Are there any language or cultural barriers that need to be accounted for to enable both parties to participate equally in the proceedings?
  • Will the alternative jurisdiction recognised an Order made under Australian Law?
  • Will the Australian legal system recognise an Order made under the alternative proposed forum?
  • Which forum will provide a more effective and complete resolution of all matters in dispute between the parties?
  • If there are proceedings instituted in multiple jurisdictions, what stage are the proceedings at in all jurisdictions involved?
  • Are there any legitimate and legal advantages for the proceedings to be heard in another jurisdiction?

If a Court finds that a party has already commenced proceedings in another jurisdiction, the Court could also make an Order to “stay” the proceedings in Australia. This has the effect of pressing pause on the Australian proceedings until the outcome of the overseas proceedings can be determined or an issue in dispute is clarified.

Finally, if it is established that another jurisdiction has already determine a matter on a final basis, the Court could refuse to entertain the application in its entirety.

If you would like further advice in respect to whether Australia is the appropriate jurisdiction to determining your property matters, please do not hesitate to contact one of our solicitors.

Image Credit – Roman Motizov ©

Written by Peter Magee on May 5, 2018

Peter is a partner of Armstrong Legal and head of our Family Law Division. He has over 15 years’ experience. His past experience dealing with large cases benefits his family law clients by providing insight into complex and tactical issues. As a result, Peter can often achieve settlements outside Court that may otherwise have not been achievable. View Peter’s profile

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