International and Overseas Divorce

Australia has a no fault divorce system, which means that it is one of the simplest jurisdictions in the world to obtain a divorce.

The things that must be proven are:

• You are married (by production of a marriage certificate);
• You have been separated for a period of at least 12 months; and
• That the relationship has broken down irretrievably

If you are an Australian living in an overseas jurisdiction, you will still be able to apply for divorce in Australia. If you are a citizen of another country living and domiciled in Australia or a permanent resident, then, even if your country of citizenship does not have a no fault system, then you may still be able to apply for a divorce in Australia.

Some countries may require a longer period and some may require a shorter period following the breakdown of a marriage before you can apply for a divorce. That country’s rules are not relevant to whether the Australian court will grant a divorce. You will need independent legal advice from a properly qualified lawyer in the other country’s jurisdiction to find out whether or not the granting of a divorce in Australia will be considered valid in that country.

If you are an Australian living overseas in a jurisdiction that requires a longer period of separation, you will still be able to obtain a divorce in Australia.

Conversely, if you are in Australia but you or your former spouse has some connection to an overseas jurisdiction that requires a shorter period of separation, you may be able to apply for a divorce in that jurisdiction. Whatever the case may be, it is important to know that Australia recognises a divorce obtained from an overseas jurisdiction if certain conditions are met.

The relevant section for the recognition of a decree from an overseas jurisdiction by the Australian courts is section 104 of the Family Law Act 1975.

That section says at s104 (3) (with important emphasis added):

3). A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where:

(a)  the respondent was ordinarily resident in the overseas jurisdiction at the relevant date;

(b)  the applicant or, in a case referred to in paragraph   (b) of the definition of applicant in subsection   (1), one of the applicants, was ordinarily resident in the overseas jurisdiction at the relevant date and either:

(i)  the ordinary residence of the applicant or of that applicant, as the case may be, had continued for not less than 1 year immediately before the relevant date; or

(ii)  the last place of cohabitation of the parties to the marriage was in that jurisdiction;

(c)  the applicant or the respondent or, in a case referred to in paragraph   (b) of the definition of applicant in subsection   (1), one of the applicants, was domiciled in the overseas jurisdiction at the relevant date;

(d)  the respondent was a national of the overseas jurisdiction at the relevant date;

(e)  the applicant or, in a case referred to in paragraph   (b) of the definition of applicant in subsection   (1), one of the applicants, was a national of the overseas jurisdiction at the relevant date and either:

(i)  the applicant or that applicant, as the case may be, was ordinarily resident in that jurisdiction at that date; or

(ii)  the applicant or that applicant, as the case may be, had been ordinarily resident in that jurisdiction for a continuous period of 1 year falling, at least in part, within the period of 2 years immediately before the relevant date; or

(f)  the applicant or, in a case referred to in paragraph   (b) of the definition of applicant in subsection   (1), one of the applicants, was a national of, and present in, the overseas jurisdiction at the relevant date and the last place of cohabitation of the parties to the marriage was an overseas jurisdiction the law of which, at the relevant date, did not provide for divorce, the annulment of marriage or the legal separation of the parties to a marriage, as the case may be.

An overseas divorce may not always be beneficial to you. For example, in some countries, a divorce order may also conclude your financial matters, using a different methodology to that used in Australia, and, in some cases, may produce a drastically different result to that which would occur if the case were heard and determined in Australia applying Australian law. Therefore, it is extremely important to seek advice from a family lawyer in Australia, and also in that overseas jurisdiction, before making a decision as to which court should be the place where you apply for a divorce. In some countries, you must apply for a property settlement and other orders at the same time as applying for a divorce. In most circumstances, provided that another country’s court has not already determined your property case, you can still make an application for property orders in Australia even though you are divorced in another country.