Take Home Message
- Australians need to determine if their marriage, conducted in another country, is recognized in Australia. They will need a foreign marriage certificate and translation if it is not in English.
- If one spouse lives abroad, they can still file for divorce in Australia if they are both Australian citizens. Evidence of living apart for 12 months with no chance of reconciliation is required.
- The decision on where to divorce depends on individual circumstances, but legal and financial considerations should also be taken into account.
- Australian courts have the power to make binding property orders that can be applied both in Australia and overseas, but other countries may have different rules regarding property division and premarital agreements.
- Seeking early legal advice is important in navigating the complexities of international divorce.
Key points:
- Check if overseas marriage is recognised in Australia and provide necessary proof.
- Divorce is possible in Australia even if one spouse lives abroad.
- Consider legal and financial implications when deciding where to divorce.
- Australian courts have power over property orders, while other countries may have different rules.
- Seek early legal advice for international divorce cases.
Divorce is emotionally and practically challenging. It can be made even more difficult if your spouse lives in another country or you are both from different countries.
Is your marriage recognised in Australia?
The first thing to check is whether the marriage you had in another country is recognised in Australia. A marriage that took place overseas can’t be registered in Australia. However, you will need a foreign certificate to prove that it happened.
Any overseas marriage certificate in another language that is used as evidence in divorce proceedings must be translated by a certified translator into English. Marriage certificate and translation must be attached to the Affidavit.
A marriage that took place abroad is generally recognised by Australia, provided you have the required proof and it would be valid under Australian law if you were married here. There are some conditions that will prevent a foreign wedding from being recognised in Australia. These include being married in another legal marriage, not being resident in Australia or being younger than 16 at the time, being related, and being forced into marriage.
Divorce in Australia when one spouse is living abroad
If both of you live in Australia and you were married overseas, it is fairly easy to file for divorce if you’re currently living there. What if you both live overseas? If you are both Australian citizens, either of you can apply for a separation in Australia.
You must provide evidence that you and/or your spouse lived apart and separately for a minimum of 12 months with no reasonable chance of reconciliation or resuming married life. You can live in the same house and still be separated.
Where to divorce
The next step is to determine if it’s the right option for you. The decision will depend on your individual circumstances. However, there are also legal and financial considerations.
Australian law, for example, recognises both de facto couples and same-sex relationships and allows property division in the event of a breakup. Comparatively, some European countries give de facto couples fewer rights in terms of property division.
Australian courts have the power to make binding orders on property that can be applied by parties both in Australia and overseas. Other European countries do the same, while others only apply property orders to properties located in their own country.
In some European countries, premarital agreements may be considered legally binding. This means that courts may not have the jurisdiction to alter the terms, even if the agreement is unfair or unjust. The way European courts deal with financial disclosures and spousal support are also important issues.
Providing information for informed decisions
International divorce matters are invariably complex. Getting legal advice early is crucial.
