Marriage is a significant milestone in anyone’s life, and sometimes, individuals may choose to tie the knot overseas, creating unforgettable memories in a foreign land.
However, divorce may become a reality when marriages encounter challenges, even if the wedding occurs outside Australia.
This article explores the legal aspects of married overseas divorce in Australia and the essential information you need to know to navigate this complex process.
Will Australia Recognise My Marriage Overseas?
Australia recognises marriages that are validly solemnised according to the laws of the country where the wedding took place.
To be legally recognised in Australia, the marriage must have adhered to the legal requirements of the foreign jurisdiction.
These may include age restrictions, consent requirements, and proper documentation.
Also read: If You Get Married in Vegas is it Legal in Australia?
Am I Eligible to File a Divorce in Australia: Married Overseas Divorce in Australia
For couples who married overseas and now wish to divorce in Australia, certain requirements must be met to establish jurisdiction.
Generally, either party must be an Australian citizen, regard Australia as their home, or have lived in Australia for at least 12 months before applying for a divorce.
An Australian Court has the jurisdiction to grant a Divorce if you were married outside of Australia, as long as at least one of the following pre-conditions applies:
- You or your spouse are domiciled in Australia (domiciled means you regard Australia as your home and intend to live indefinitely in Australia); or
- You or your spouse are an Australian Citizen; or
- You or your spouse ordinarily live in Australia and have lived in Australia for at least one year immediately before applying for divorce
If one of the above conditions is satisfied, then the Family Court of Australia or the Federal Magistrates Court can hear your Divorce Application. So, for example, let’s say the following applies:
- you are a citizen of the United Kingdom and were married five years ago to an Australian Citizen in the USA
- you separated two years ago, and you went to live in New Zealand
- your spouse now lives in India
Under those circumstances, because your spouse is an Australian Citizen, you are entitled to apply for a Divorce in Australia even though you are not an Australian citizen and were not married in Australia.
Of course, to be granted a Divorce by the Australian Court, you must satisfy the usual requirements of the marriage has broken down irretrievably, be separated for at least 12 months, and satisfy the Court that proper arrangements have been made for any children of the marriage.
Also read: International Assets in a Divorce
How to Apply for Divorce?
The divorce application process in Australia involves several steps, regardless of whether the marriage occurred in Australia or abroad.
The application is filed through the Federal Circuit Court or the Family Court of Australia. It’s crucial to complete the application accurately, providing all necessary documentation to avoid unnecessary delays or complications.
Step 1: Required Documentation
Gather all the necessary documents to support your case. This includes your marriage certificate, which must be translated into English if it’s in another language.
Step 2: File an Application
Submit a completed divorce application form to the Federal Circuit and Family Law Court of Australia.
This can be done online using the Commonwealth Courts Portal. Make sure to double-check all the information and pay the required filing fee.
Step 3: Serve the Application
If you’re the sole applicant, you must serve a copy of the filed divorce application on your former partner.
This should be done following specific rules and guidelines for service, which may include using a process server.
Step 4: Wait for a Response
After serving the application, your former partner has a specific response timeframe.
If they contest the divorce, be prepared for a more extended legal process.
Step 5: Divorce Hearing
If there are issues to resolve or your former partner contests the divorce, a court hearing may be necessary.
Both parties can present their cases during this hearing, and the judge will decide based on the evidence provided.
Step 6: Divorce Order
A divorce order will be granted if all requirements are met, and the judge is satisfied.
This order becomes final after one month and one day, at which point you are officially divorced.
Will Australia Recognise Overseas Divorce?
Australia recognises divorces granted overseas, provided they are legally valid in the foreign jurisdiction.
However, it is advisable to seek legal advice to ensure that foreign divorce is recognised and enforceable in Australia.
Providing Assistance to Our Clients
As a law firm, we received a distressed call from May, an American who married George, an Australian, in the picturesque islands of Hawaii.
They had been living in Australia but found their once blissful marriage crumbling under irreconcilable differences.
May confided in us that she wished to file for divorce in Australia.
Empathising with her situation, we assured May we would guide her through the process.
First, we ensured that their marriage in Hawaii was legally recognised in Australia, confirming the validity of her request.
We explained the jurisdiction requirements and reassured her that filing for divorce here was appropriate as they were residing in Australia.
Next, we assisted May in preparing the divorce application, ensuring all relevant documents were correctly filled out.
We explained the importance of adequately serving the divorce papers to George, who was currently overseas, and helped facilitate the process.
The divorce application had to be served on George by way of substituted service, and we explained this to the court to obtain the divorce order.
Seek Legal Advice: Married Overseas Divorce in Australia
Married overseas divorce in Australia can be a challenging and intricate process due to the interplay of international and Australian family law.
Understanding the legal requirements for recognition and jurisdiction is vital for a smooth divorce process. Our international family lawyers can assist and guide you through this process.
Whether you are an Australian citizen or a foreign national seeking divorce in Australia, seeking legal counsel is essential to navigate the complexities and ensure a fair resolution for all parties involved.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
