What is International Divorce
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.
Is your Marriage Recognized 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 recognized in Australia:
- If the marriage is recognized 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.
Applying for international divorce
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.
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.
Same Sex or Defacto 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.
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You have Questions. We have Answers.
Frequently asked questions
Can I make a sole application?
Either you or your ex-partner can apply for divorce separately or you can make a joint application. The only drawback is that you will have to pay the full filing fee unless you have a Health Care Card.
What if we are 'on and off again'?
If you reconcile with your spouse for less than 3 months it will not affect your ability to file for divorce. However, the period of reconciliation must be added to the period of separation so that it adds up to at least 12 months.
Can I oppose an application for Divorce?
In short the answer is yes. If you choose to oppose the Application, you must file and serve a Response to Divorce Application with the court.
The most common objection to a divorce is the actual date of separation.
How long will it take to get the Divorce?
The timing varies depending on the caseload of the court however the usual time is less than three months from the date of filing.
If you have children under the age of 18 years, the court will also want to know that proper arrangements have been made for the care and welfare of the children before granting the divorce.
Do we need to attend counselling?
If it is less than two years since the date of marriage there is a requirement that you and your spouse attend counselling to show that you have considered reconciliation before filing for divorce.
