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International Divorce

Family Law: 06 March 2020

Going through a divorce is a highly emotional and stressful time for people. While the process for divorce may seem relatively simple and straightforward, the addition of international or cross-cultural issues can complicate the process and it is important that you seek the right advice.

Can I get divorced in Australia if I was married overseas?

The good news is, it is possible to apply for a Divorce if you were married in an overseas jurisdiction.

As with any divorce application, you are required to satisfy the Court that you and your former spouse have lived separately and apart for at least 12 months and there is no reasonable likelihood of resuming married life together.

If you were married overseas, you will need to satisfy the following further criteria:

  • You regard Australia as your home and intend to live in Australia indefinitely;
  • You are an Australian citizen by birth, descent or grant of Australian citizenship; or
  • You ordinarily live in Australia and have done so for the past 12 months before filing for divorce.

You will also need to provide to the Court your foreign marriage certificate to prove your marriage occurred. For the purposes of the Divorce Application, the foreign marriage certificate will simply need to be translated into English and be attached to an Affidavit.

What if my former spouse or I live overseas?

Sometimes, when a spouse is living overseas, it can often be difficult to locate and serve them with the application for divorce.

If you have taken all reasonable steps to locate your spouse and you are still unable to locate them, you can make an application to the Court for:

  1. Substituted Service: this will enable you to serve the application for divorce on a third person who can pass the application for divorce onto your spouse; or
  2. Dispensation of Service: you will not be required to serve the application for divorce if the Court agrees and is satisfied you have made all reasonable steps to serve your spouse.

Which country do I file for divorce in?

This can often be a legally complex question and it is essential that you seek legal advice on which jurisdiction would be best to commence divorce proceedings. There can be strategic advantages and disadvantages for filing in a particular country. It may be that you are entitled to a more favourable financial claim in one country.

It will be important to consider, among other things, the following:

  • The time it will take to get divorced;
  • The cost of the application;
  • Any financial implications;
  • Whether the Court in a particular country has powers to issue injunctive orders to stop assets being transferred out of one country and into another; and
  • Any issues relating to enforceability of overseas orders.

How can Aitken Partners assist?

If you are thinking about applying for a divorce, it is important that you seek legal advice at the first available opportunity. At Aitken Partners we are well equipped to assist you with international and cross-cultural Family Law issues.

With Phoebe Smillie

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