Looking to Get a Divorce in Australia When The Marriage Occurred Overseas?
Divorce can be a complex process, and it becomes even more intricate when the marriage occurs in a foreign country. If you were married overseas and now reside in Australia, you may wonder about the divorce process under Australian law.
This guide aims to help you understand the requirements and steps involved in obtaining a divorce if you were married overseas. It clarifies everything from property settlement to parenting matters and court orders. Make sure to consult with a legal expert to ensure that your specific circumstances are addressed.
Table of Contents
Understanding Australian Divorce Laws
Australia operates under a no-fault divorce system, meaning you do not have to prove that either party was responsible for the breakdown of the marriage. Instead, the only requirement is to demonstrate that the marriage has broken down irretrievably and that you have been separated for at least 12 months.
Even if you were married overseas, getting a divorce in Australia is covered by the Family Law Act 1975. The Federal Circuit and Family Court of Australia handles divorce applications, property settlements, and parenting matters.
Residency Requirements for Divorce in Australia
To apply for a divorce in Australia, you or your spouse must meet one of the following residency requirements:
- Be Australian citizens (either by birth, grant of citizenship, or descent).
- Be living in Australia and regard it as your permanent home.
- Be an Australian permanent resident.
- Have lived in Australia for at least 12 months before filing the divorce application.
International Divorce and Legal Recognition
If you were married in a foreign country, your marriage is recognised in Australia, provided it was legally valid according to the laws of the country where the marriage ceremony took place. When you apply for a divorce in Australia, you must provide proof of your overseas marriage. This usually involves submitting a copy of your marriage certificate with your Application for Divorce.
If your marriage certificate is in a foreign language, you must provide an accredited translator’s English translation and the original marriage certificate for validation.
Filing for Divorce in Australia: Step-by-Step Guide
Whether your spouse lives in Australia or another country, you can still initiate divorce proceedings in Australia, provided you meet the legal requirements. Here’s a step-by-step breakdown of the divorce process:
Step 1: Complete the Application for Divorce
You can file a sole application or a joint application. A joint application involves both parties agreeing to the divorce, while a sole application is initiated by one party. Either way, you must complete the necessary forms and submit them online through the Commonwealth Courts Portal.
Step 2: Submit Your Marriage Certificate
Submit a copy of your marriage certificate. If the certificate is from a foreign country and not in English, an English translation and an affidavit from the translator must be provided.
Step 3: Pay the Filing Fee
There is a filing fee associated with submitting your divorce application. You may be eligible for a reduced cost if you hold certain government concession cards or face financial hardship.
Step 4: Serve Divorce Papers
If you have filed a sole application, you must serve the divorce papers on your spouse. If your spouse lives overseas, you may need permission for dispensation of service or substituted service if you cannot locate them or serve the documents according to the legal standards of their country of residence. If you are unable to serve papers, you may need to ask for permission to have a divorce hearing without service being made.
Step 5: Attend the Divorce Hearing (If Required)
In most cases, you won’t need to attend a court hearing unless there are children under 18 years of age and you have filed a sole application. If no children are under 18, or you have filed a joint application for divorce, the court may finalise the divorce order without a hearing.
Step 6: Receive the Divorce Order
Once the court is satisfied with all the conditions, a divorce order will be granted, finalising the divorce. You will receive the order one month and one day after the divorce hearing or after the divorce application has been processed.
Dealing with Specific Circumstances
Depending on your situation, you may face additional complexities when filing for divorce in Australia after a marriage abroad. Here are some specific circumstances and how to manage them:
Spouse in a Different Country
If your spouse lives in a foreign jurisdiction, you must serve them with the divorce papers according to the local law in their country. If this is not possible, you may apply for an order for substituted service or dispensation of service.
No Proof of Marriage
If you were married abroad and did not have access to your marriage certificate, you may need to contact the foreign country where the marriage took place to obtain a certified copy. You will need a translated marriage certificate if the document is not in English.
Foreign Divorce
If you have already been granted a divorce in another country, it is essential to ensure that it is legally recognised under Australian law. You may still need to address issues like property settlement or parenting matters with your former partner in an Australian Court.
Handling Financial Settlements and Property Division
In addition to ending the marriage, the Federal Circuit and Family Court of Australia can help resolve financial matters such as property division, financial support, and spousal maintenance.
Whether you were married in the United States, Europe, or another foreign country, property acquired during the marriage may still be subject to Australian family law proceedings.
It is crucial to ensure proper financial settlements, particularly if you have assets in multiple countries. Consult with Family Lawyers to help you navigate these complex issues and make an informed decision about dividing assets and liabilities.
Parenting Matters and Consent Orders
If you and your spouse have children, the court must also ensure proper parenting arrangements are in place before finalising the divorce. These arrangements can be formalised through consent orders outlining who the children live with and the time they spend with the other parent. If you and your former spouse cannot agree, the Federal Circuit and Family Court of Australia will make orders in the children’s best interests.
Important Considerations: Social Media and Evidence
In the modern age, it is essential to be cautious about social media behaviour during divorce proceedings. Anything you post may be evidence in court, especially regarding parenting or financial settlements.
Legal Advice and Next Steps
Navigating an international divorce can be complicated, and seeking legal advice from experienced Divorce Lawyers is crucial. A lawyer can guide you through the family law system, explain your rights, and ensure your interests are protected.
You may also need advice on related issues such as:
- How to handle domestic violence or criminal law issues if they arise during divorce proceedings.
- How to navigate de facto relationships and ensure proper arrangements for shared assets or children.
- Managing ongoing responsibilities such as a child or financial support for your former spouse.
An international divorce, especially when one partner lives abroad, can be more complex than a local divorce. However, by following the legal steps and working with knowledgeable Family Lawyers, you can successfully navigate the process under Australian law. Remember that each case is unique, so seeking legal advice tailored to your circumstances is essential for a smooth divorce.
If you are unsure about any aspect of the divorce process, filling out an enquiry form with a lawyer experienced in family law matters can help clarify your next steps and ensure you meet all legal requirements efficiently.
