Deciding to get a Divorce is a very personal and sometimes stressful process at the best of times.
If you are planning on filing for divorce and you and your spouse live overseas or you are married to a person who is living abroad, there are several things you need to consider.
You will need to satisfy the court that you and your spouse have lived separately and apart for at least 12 months. In addition, there must be no reasonable likelihood of resuming married life. It is important to note that it is possible to live together in the same home and still be separated.
Is your marriage recognised in Australia?
Checking if your marriage is recognised in Australia is a fairly straight forward process for couples married in Australia. You will either already have a copy of your marriage certificate or you can request one from the registry of births, deaths and marriages in the state in which the ceremony occurred.
An overseas marriage cannot be registered in Australia. However, the foreign marriage certificate will be evidence that the marriage occurred. If your marriage certificate is not in English you will need to have it translated into English by a registered translator.
An overseas marriage will generally be recognised in Australia:
- If the marriage is recognised as valid under the law of the country where the marriage took place.
- Providing the marriage would have been recognised as valid under Australian law had it taken place in Australia.
What are the criteria for applying for a divorce in Australia if either you or your spouse is living overseas?
You can apply for a divorce in Australia if either you or your spouse:
- Regard Australia as your home and intend to live in Australia indefinitely
- Are an Australian citizen by birth, descent or by grant of Australian citizenship
- Ordinarily live in Australia and have done so for 12 months before filing for divorce.
If your Divorce is granted overseas, will it be recognised in Australia?
A foreign divorce will be recognised as being valid in Australia if, at the date of the divorce, one or both spouses had a sufficient connection with the foreign jurisdiction (for example, if they were resident for one year prior to the date of issue, domicile or nationality).
A foreign divorce may be refused recognition if it is contrary to public policy or if a party to the marriage had been denied natural justice (for example, if one of the parties had no notice of the hearing).
If you are considering or you believe your spouse may apply for divorce overseas you will need to seek advice about the implications for doing so and whether the divorce will be recognised in Australia.
What about de-facto and same sex relationships?
Australian law makes provision for situations where a de facto or same-sex relationship has broken down. Until the law is changed, same sex marriage in a foreign jurisdiction will not be recognised as a ‘marriage’ in Australia.