Families dealing with separation, divorce, parenting and property settlements across international borders are faced with exceptional challenges. Dealing with family law matters within Australia can be challenging enough, but with the added complexity of international laws, family law matters become increasingly difficult.
The Family Law Act 1975 governs family law in Australia, but also has conditions for accepting certain legal matters such as divorce and marriage in other countries.
Custody and property settlements can also be more complicated when the issues span across countries.
Understanding Cross-Border Divorce
International divorce can be a little complicated. If you’re seeking a divorce in Australia and you were married in another country, you first need to ascertain whether your marriage is legally recognised in Australia.
Most marriages evidenced by a valid marriage certificate will be legally recognised in Australia. There are certain marriages which are legally allowed in some countries that will not be recognised in Australia including marriages where:
- The parties are under the age of 16;
- The parties are siblings or parent and child; and
- One or both parties are already married to another person (polygamy).
If you are an Australian citizen living in another country or were married in another country and are living in Australia on a permanent basis, you may still be able to apply for divorce in Australia if one party to the marriage:
- Considers Australia home and intends to reside here indefinitely; and
- Is an Australian citizen; and
- Usually resides in Australia and was living here for 12 months prior to filing for divorce.
Additionally, you must also have been separated from your spouse for at least 12 months and if your marriage certificate is not in English, you must file the certificate of marriage alongside an English translation with an affidavit signed by the authorised translator.
Alternatively, if you were married in Australia, but intend to divorce in another country, you need to demonstrate that one party to the marriage has a significant connection to the country in which you intend to divorce, usually by being a resident of that country.
The divorce will generally be accepted in Australia if this criterion is met.
A divorce may be deemed invalid in Australia if it would be contrary to public policy to recognise the divorce, or if a party was not afforded procedural fairness under the law of the other country.
To have a divorce recognised in Australia, you will need a copy of the divorce certificate and you will need to provide the certificate to the Registry of Births, Deaths and Marriages if you wish to remarry.
If the certificate is not in English, further steps will need to be taken for the certificate to be validly translated.
Child Custody Across Borders
International custody cases can be complicated, even if they’re working relatively smoothly. At worst, international child custody matters can be a nightmare for parents and children involved.
To determine which country’s laws apply, the jurisdiction of the particular situation will need to be determined. Usually, jurisdiction in Australia is established if one of the following apply:
- the child is a resident of Australia; or
- both parents agree to the jurisdiction; or
- the child has substantial connection to Australia.
Although mediation and negotiations are still recommended when deciding on custody arrangements to facilitate an amicable agreement, it is prudent to seek legal advice, especially if one parent resides in a country that is not a party to the Hague Convention.
The Hague Convention is an international agreement which provides processes for abducted children to be returned to their home country. Signatories to the Hague Convention include, but are not limited to, the following:
- New Zealand;
- Sri Lanka;
- Thailand; and
- The USA.
The following countries are not parties to the Hague Convention, and seeking the return of a child from one of these countries can be very difficult if not impossible:
- Russia; and
Additionally, countries such as Japan and Peru are signatories to the Hague Convention but have demonstrated poor compliance.
Parenting orders will be much easier to enforce if the countries involved are parties to the Hague Convention.
When making parenting arrangements, careful consideration will need to be given to travel and limitations on the child travelling, especially where abduction is a concern.
Usually, if a child is born in Australia, they will not be able to travel without the consent of both parents.
To prevent a child being taken from Australia without consent, a parent may seek a passport alert, or they may seek to place the child on the Family Law Watchlist if they suspect the child will be taken from Australia.
Australia has an arrangement with various countries to register court orders made in those countries so that they are enforceable in Australia or vice versa.
A list of those countries is available in Schedule 1A of the Family Law Regulations 1984. This means that parenting orders made in Australia can be registered and therefore enforceable in the countries listed in the regulations.
As well, parenting orders made in certain other countries can be registered in Australia, thereby making them legally enforceable here. There are certain requirements that must be met before orders can be registered.
How Laws from Different Countries Apply
Divorce and marriage certificates granted in other countries may still be valid and accepted in Australia if they comply with the conditions discussed above.
If they are considered invalid for whatever reason, they will not be valid in Australia. This may mean that a marriage is not recognised and therefore a couple are not considered to be legally married in Australia, or a divorce may not be recognised and therefore a couple may be deemed to be still legally married in Australia.
If international parenting orders are registered in Australia, the orders are enforceable in Australia, but they were still created under the other countries jurisdiction, with those laws in mind.
Managing Money and Property in International Cases
When dividing assets as part of a property settlement during separation, overseas assets are still included in the property pool and will need to be divided as part of the settlement.
Overseas assets will need to be identified and disclosed in the same way as Australian assets.
Superannuation or pension interests held in another country will need to be treated differently to Australian superannuation, as they may need to be dealt with in the country in which they are held to comply with the laws of that country.
It may also be prohibitively difficult to split overseas superannuation or pensions in a property settlement.
Australian court orders are not automatically enforceable in other countries, therefore foreign jurisdictions may not enforce property settlement orders without first obtaining an order within the relevant foreign jurisdiction.
In countries such as the UK which have a very similar legal system it can be relatively achievable to obtain enforcement of Australian orders by application to a local court, however in countries with very different legal systems normally separate legal proceedings would be required in the relevant country to deal with assets or children resident in those jurisdictions.
Finding and Working with a Lawyer
Family law matters can be complicated at the best of times and require the assistance of experienced family lawyers. It is imperative to seek reputable legal advice from a family lawyer when dealing with international family law matters as these are particularly complex.
At Matthies Lawyers we have colleagues in jurisdictions such as the United Kingdom and United States who are able to assist with matters in those jurisdictions.
Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.