How your international divorce operates in the Australian family law system30 May 2022 Topics: Family law
In this video, CGW family law partner Justine Woods talks about international divorces and some basic principles of international marriage and divorce law.
Hello, hello, everyone. I’m Justine Woods. I’m the family law partner here at Cooper Grace Ward. Today, I’d like to talk about international divorces given how multicultural our society is, how migration is part of our economic recovery post COVID and if ever, we can leave our homes and our states, there ought to be more of it. I thought it might be helpful if we talk about some very basic principles of international law.
So, in relation to family law, and in particular marriage and divorce, the general basic rule is if a ceremony or a decree is binding in the country in which it occurred, in a legal sense, it will be binding here in Australia. Now there’s a long series of cases in the family courts history, where it’s been called upon to determine has a particular ceremony or a particular certificate that took place overseas, is it going to be recognised here? So, a lot of consideration has been given to do certain parties equate, or celebrations equate to a marriage, for example? No, they don’t. If it’s a legal ceremony, in its country of origin, which is binding in that nation, then it’s likely going to be binding here. Now, it will be binding here. The same applies to divorces. But with some exceptions, because divorce is a very different concept, depending in which part of the world you’re obtaining one.
So, here in Australia, divorce dissolves the marriage and if you’ve still got love left to give, you can remarry. So it’s more about status, and dissolving the underlying relationship in a legal sense. In Australia and most of the common law countries, but not all, it’s independent from an agreement about children, and independent from finances. So, here in Australia, you can be divorced after 12 months and one day of separation. If you haven’t been married, for two years by that point, there are some other requirements. But a divorce can be granted even if you haven’t got an agreement or started proceedings, about your children or about your wealth. Elsewhere in the world, those things must happen together or can happen together and they’re not time limited. That is there’s in a no fault system such as Australia, it’s really only passage of time that is the ground that shows irretrievable breakdown of marriage. In other cases, one party simply needs to ask for a divorce and that may or may not then be accompanied by a series of financial orders.
So again, over the years, there have been lots of cases about what that actually means. Now, one case has recently been decided by the High Court. It’s a family court case, originally, where the husband obtained a divorce overseas in a jurisdiction in which property settlement orders were effectively made. At least that was the husband’s argument. It basically returned a dowry and some religious items to each party, and an otherwise attempted to dissolve all aspects of the relationship between them. Now after a very long period of time, and an examination of more than years of jurisprudence, the High Court has found that in that instance, because the wife in that case, there was a divorce made overseas, it purported to say that there could be no further claim for any financial orders. The wife who was living in Australia then sought to rely on the Australian system to apply for property settlement and for spousal maintenance. The court found in this case, because there was no examination whatsoever of issues that we here would recognise as property settlement or maintenance issues, that that oversees divorce, did not prevent the wife and the orders made about the financial matter, prevent her from applying here. So that effective, all that really means is that a divorce, and a property settlement order from overseas may not work as both and that then you may have to give consideration both as the person who wants to rely on that international order, or perhaps is the person seeking to challenge it. What was the underlying process conducted overseas and are you astop which means legally, you can’t proceed contrary to that original order.
So, it’s not as straightforward as it first seems and it’s I think it’s going to be an increasing area given so many people are travelling so it’s in the past travelled so extensively. Maybe coming back to Australia, maybe migrating here as a place somewhat sheltered from COVID. So, this is a rather technical area to be thinking about between the hours of midnight and dawn, but there are many people to whom it applies and if you’d like to talk about these issues further, you’re very welcome to contact us.