Family Law Orders and Cosmopolitan Australia
Many Australians have travelled, studied and lived all over the world. They may have been transferred overseas with work and decided to settle in their adopted country with family and community ties being forged over many years. In that time they may have married someone from their new home, bought a residence and built an asset base there. A corporate career may have given opportunities to live for extended periods in a number of countries so that partners own apartments or homes in several places.
What happens when relationships break down?
As in any separation the three main areas of dispute are:
Marriage and Divorce;
Property; and
Parenting.
In the context of the cross-border connection of international laws, these issues can be further complicated by different laws involving valid marriages, whether the country in question is a signatory to the Hague Convention on Child Abduction and who has started Court proceedings first.
Some of the issues that arise include:
Can ex-partners claim a share of overseas assets or shares even if they are part-owned by the “overseas” family?
Can the Australian Family Court hear your case?
Can the Australian Court make orders that are enforceable overseas?
Can overseas orders be enforced in Australia?
Can the Australian make orders restricting the time children spend time with parents who live overseas?
Can a parent take a child to a non-Hague convention country?
Can a dual-national commence parenting proceedings in one country and property proceedings separately in another country?
Can a Financial Agreement signed in Australia have any effect internationally?
MARRIAGE AND DIVORCE
Marriage in Australia
The Family Law Act (Cth) 1975 (“the Act”) provides that for a marriage to be valid the following must be satisfied:
Parties to the marriage were aged at least 18 years of age at date of marriage;
Both parties gave free consent;
Neither party was married at the time of the marriage;
There was no prohibition to the marriage: party was not a grandchild, parent, brother, sister, grandparent of the other party; and
The requisite notice of the intention to marry was given (One month’s notice before the date of the marriage.)
There are some exceptions where a minor is allowed to marry such as if the parents consent, the length of the marriage and whether there are specific reasons for the marriage.
There are also procedural requirements where certain words of intent are included in the ceremony and that the ceremony can only be conducted by an authorised celebrant.
Overseas Marriages
If you married overseas according to the laws of the overseas country then that marriage will be recognised in Australia.
Cruise ship marriages will either be according to the law of the local territory where the ship was moored or if on the high seas according to the law of where the ship is registered. As long as these marriages complied with the relevant laws, they will be recognised in Australia.
As an overseas marriage cannot be registered in Australia it is important to keep the foreign marriage certificate as it will be evidence that you may use in any divorce or family law proceedings in Australia.
As polygamous marriages are valid in some countries, these relationships may be recognised in Australia in property or parenting proceedings even though polygamous marriages are invalid in Australia.
Can I commence divorce proceedings in Australia?
The Act sets out the requirements that allow you to divorce in the Australian Jurisdiction.
To commence divorce proceedings, you must be an Australian citizen, domiciled in Australia or resident in Australia for the last 12 months. Only one of these requirements must be met.
“Domicile” is a legal concept which refers to the country of permanent residence to which a person has a close and real connection.
To make an application for a divorce, you must provide proof of a valid marriage. If your Marriage Certificate is in a foreign language your original marriage certificate must be accompanied with a certified translator by an officially authorised and accredited translator.
Australia does not have a fault component for divorce. The sole ground for divorce is the irretrievable breakdown of marriage. If there are children of the marriage the Court also requires that proper arrangements have been made for their care, welfare and development.
If all requirements are met, the divorce order will take effect at the end of one month after order was made.
Will my overseas divorce be recognised in Australia?
“In general , an Australian court will recognise a divorce, annulment or legal separation effected in accordance with, or recognised as effective by, the law of an overseas jurisdiction if, at the relevant date, the following applies:
Either party was resident in the overseas jurisdiction;
A party responding to the divorce application was domiciled in the overseas jurisdiction; and
The party applying for the divorce was both resident for a period of 12 months prior to the application, in and a national of the overseas jurisdiction.
Specific cases may have facts that allow overseas divorces to be recognised. There is case law where divorce by Rabbinic law, a Gett, or a Talak in a Muslim country has been recognised. Countries where polygamous marriages are allowed by law may give rise to specific determination. You will need to consult a lawyer in these circumstances to determine whether your divorce decree would be accepted by Australian Law.
On the other hand a foreign divorce may not be recognised if one party of the marriage has been denied natural justice as would happen if an estranged spouse sought a divorce overseas without notifying the other spouse.
PROPERTY
Property in Australian Family Law
The Family Law Act (Cth) 1975 is the basis to determine how property will be divided between former partners.
Please check our articles “HOW DOES THE COURT WORK OUT PROPERTY DIVISION BETWEEN A SEPARATING COUPLE?” and “Financial Agreement vs Consent Orders” (28 January 2020).
What if my ex-partner has started proceedings overseas?
Some issues and legal terms you come across may confuse you. You may hear questions such as:
When will an Australian court grant a stay of its proceedings due to pending foreign proceedings?
How is the principle of “forum non conveniens” applied in Family Law cases with a cross-border dimension?
“Stay” of Proceedings
Your former partner may have started proceedings in an overseas jurisdiction. You have decided to immediately commence proceedings in Australia hoping to protect your assets and achieve a settlement according to Australian law. Your estranged partner’s legal team may then say “We can’t run two cases in different countries. We are going to apply for a “stay” as we are dealing with the same issues overseas and it will only lead to duplication. Australia is obviously a ‘forum non conveniens’.”
The “stay” is really a way of saying that the Court will stop your proceedings and that the basis for that stay is that Australia is a clearly inappropriate forum to hear the case.
“Principle of Forum non conveniens”
The term refers to the discretionary power of a court to not hear a case that may be more conveniently heard in another court. In determining whether the Australian court will decline to exercise its jurisdiction, the court applies the principle as set out in the leading High Court by considering whether to continue the proceedings would be “oppressive in the sense of ‘seriously and unfairly burdensome, prejudicial or damaging ‘or vexatious, in the sense of ‘productive of serious and unjustified trouble and harassment”.
In Australia the applicant for the stay bears the onus of proving that Australia is the clearly inappropriate forum i.e. the person who has started proceedings overseas. Case law in Australia has developed a non-exhaustive list of what will decide a “stay” application.
Factors to consider when assessing a stay application
Expense including travel;
Whether the resources and language comprehension would impede an equal participation of parties in proceedings;
The connection of the parties and their marriage to each jurisdiction;
What relief is available in the jurisdictions;
Which forum may provide complete resolution of the issues and the recognition and enforcement of orders;
The order of instituting each proceedings;
The law governing the dispute; and
Any juridical advantage a party may have in litigating in either jurisdiction.
If both proceedings are substantially the same, the Court will consider whether the concurrent proceedings would be vexatious and oppressive.
If Australia has the authority and jurisdiction to hear a case then the Court will look at the expense for the party in Australia to travel to the overseas jurisdiction, taking into account whether there are children, whether the children were born and live in Australia, whether the overseas Court would conduct proceedings in a foreign language further necessitating the expense of an interpreter with legal language skills and whether all these factors would lead to an oppressive burden of expense and managing the case.
The Court will also look at whether the overseas jurisdiction can deal with all matters and also has the power to enforce any orders made. The Court will look at where most of the property of the parties is held, where they have the most connection, which bank accounts hold the most assets and work out which Court can better manage proceedings.
The Courts will also consider issues such as whether there is enough property in Australia to offset the value of any overseas property if they were able to determine orders that would finalise the division of the property pool.
If any controversy arises about the overseas law, an expert can be appointed to give evidence to the Court which will also assist in determining whether both parties would be offered procedural fairness if the matter proceeded overseas.
So the High Court’s stay test is based on the issue of whether the Court would be a clearly inappropriate forum for reasons such as:
Clearly inappropriate forum;
Circumstances of the oppressive burden;
Cost and language difficulties of litigating in the overseas jurisdiction;
Court proceedings are vexatious and oppressive.
PARENTING
Parenting Orders in Australia
The Family Courts make parenting orders to regularise parenting arrangements for a child. This can be decided after the parents agree and sign that agreement as Consent Orders or after a hearing at court. Once the orders are made, each person named in or affected by those orders must follow them as they are legally binding and the parent or person named in the Orders has a legal obligation to abide by the orders or be in breach and face sanction.
Parenting orders deal with areas such as:
Who the child will live with and where;
Who has parental responsibility (for school choices, health issues, religion and long-term issues);
Rules about how parents communicate with the child when the child is staying with other family members;
What time the child will spend with each parent, on special days such as birthdays and with other people such as grandparents; and
Any matter that affects the care, welfare or development of the child.
If the parenting order provides that two or more people have equal shared parental responsibility, then each parent or person named in the order must make a genuine effort to consult together to reach a joint decision.
The Hague Convention
Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction or Hague Convention which is a treaty that provides for the return of a child abducted by a parent from one country to another. However, not all countries are signatories and there are difficulties if a parent has already taken a child or children to a country that does not recognise the Hague Convention. Orders can be included in the parenting orders that the children be put on the Watch List and that Australian Federal Police are alerted so that all ports of exit from Australia can be notified. See our article “My Ex-partner Has Taken my Children. How Can I Get Them Back” (26 April 2019).
Registering Final Parenting Orders Overseas
Problems can also arise between countries that are signatories of the Hague Convention. Parents may divorce and one parent will move on with a career overseas. Parenting Orders may provide that the children spend half the Christmas/long school holidays with the overseas parent. However, the parent in Australia may not facilitate air travel for the children to visit the other parent or may delay the travel claiming family problems at home.
To avoid further disruptions, the parent can register the Australian Parenting Orders overseas so that the overseas country can enforce them. Family Law Regulations 1984 (Cth) (the Regulations) provide that the Australian Orders can be sent or transmitted to and registered in certain overseas countries. These countries are listed in Schedule 1A of the Regulations.
Similarly reciprocating countries allow for overseas orders to be registered in Australia as provided by Regulation 23 of the Regulations.
General Matters to Consider when pursuing overseas orders
Although Australian Family Law Courts have delays in parenting and property proceedings, divorce cases are relatively quick and efficiently processed. However some overseas jurisdictions can take 5 years to complete;
Australia has strict laws about transactions that would have the effect of diminishing the pool of assets for division between the parties, some countries do not have such protections and assets can be transferred overseas with no recourse for the injured party to redress the injustice;
Each country has its own laws about enforcing overseas orders and may not even have that power so that orders made in the Australian Court are not enforceable and vice-versa. Similarly superannuation law is highly individual to each country and some countries to not have superannuation as part of the property pool and will not enforce any relevant Australian orders;
Marriages between same sex couples can be problematic in some countries; and
De Facto couples have legislated rights in Australian law which may not be universally acknowledged in some overseas jurisdictions.
Each Case is Different
Each family and each case is different. Unique situations can arise where you will need a family lawyer to guide you through the regulations, rules and laws that can be enforced between countries.
Whether it is parenting, property or trying to establish the validity of your marriage or divorce so that you can move on with your life, we will be happy to give you advice on the best way forward in your case.
This article for information only and does not constitute legal advice. Always consult a lawyer for legal advice relevant to your matter.