In certain circumstances a divorce granted overseas, even of a marriage performed in Australia, can be recognised here. In this article our family lawyers will look at the factors that the Court will take into account before recognising a foreign divorce.
Divorce in Australia
Briefly, in order for a married couple to divorce in Australia they, or one of them, must prove that they have been legally married, that they separated at least 12 months before filing the divorce application and that they have lived apart since then, and that there is no reasonable likelihood of the couple living together again as spouses. In addition, at least one of them must be an Australian citizen, or regard Australia as their home and intend to live here indefinitely, or they ordinarily live in Australia at the time of filing the divorce application and have done so for the preceding 12 months. Where a couple has been married for less than two years there is an additional requirement that they participate in counselling with a family counsellor to consider prospects of reconciliation before a divorce will be granted.
If the married couple have minor children, the Court must be satisfied that proper arrangements have been made for the children’s care, welfare and development, taking into account things such as their maintenance, education, living arrangements and the time the children will spend with each parent.
Australian law does not permit polygamous marriage. So, if a married person wishes to remarry in Australia, he or she must first be divorced, having received a final divorce order from the Court.
Australian divorce orders become final one month and one day after the Court hears and grants the divorce.
But what if a person obtains a divorce in another country? In what circumstances will that divorce be recognised by Australian law so that those parties, or one of them, could remarry in Australia?
The first step in determining whether a foreign divorce will be recognised as valid in Australia is assessing whether that foreign divorce was effected according to the law of that foreign country. If not, then the foreign divorce cannot be treated as valid in Australia.
Secondly the Court must look at whether either the applicant for the foreign divorce, the respondent or both of the parties were domiciled or ordinarily resident in, or were citizens or nationals of that foreign country at the time the foreign divorce proceedings were commenced. The Australian Courts are likely to recognise the validity of the foreign divorce, if it is valid in the relevant overseas country, provided that the respondent to the divorce application was a national of or domiciled or ordinarily resident in that foreign country at the time the divorce application was started.
If those factors do not apply to the respondent, the foreign divorce could be recognised in Australia if the applicant for the foreign divorce was domiciled in the overseas country at the time he or she files for divorce, or if he or she was ordinarily resident in that country at the time of starting the divorce proceedings and had been ordinarily resident there for the previous 12 months, or was at that time a national of that country. In some circumstances it would also be relevant that the parties last lived together in that foreign country.
Finally, in order for a foreign divorce to be recognised as valid in Australia, the Australian Court must be satisfied that both parties were afforded natural justice. That is, the Court must be satisfied that each of them was made aware of the application and were given an appropriate opportunity to respond to it and, if appropriate in that foreign country, to appear and be heard at the hearing of the divorce application?
What about the laws of a third country?
When an Australian Court recognises a foreign divorce as valid in Australia, either of the parties to that former marriage may then remarry in Australia (so long as they are not otherwise married to someone else at that time!). That is the case even if the foreign divorce would not be legal or recognised as valid in some third country.
Australian law does not permit polygamous marriage. Therefore, someone who has been previously married (whether in Australia or elsewhere) must first obtain a divorce (or divorces if there was more than one earlier marriage) before he or she can remarry in Australia.
Australian law will recognise foreign divorces as valid in certain circumstances, taking into account factors such as whether the foreign divorce was obtained in accordance with the laws of that overseas country, of which country either or both the parties were each citizens at the time the divorce proceedings were started and in which country either or both of the parties were living at that time.
If you need assistance or advice on how to proceed please contact us on (08) 8344 6422 or email [email protected].