How to Obtain a Divorce if Married Overseas
If you were married overseas, it is possible to obtain a divorce in the Federal Circuit and Family Court of Australia (FCFCA). All of the general eligibility requirements for divorce in Australia will still apply; however, there are also special rules and other practical matters which will need to be considered if you were married outside Australia.
The general requirements to be eligible to obtain a divorce in Australia are that you and your former spouse must have been separated for at least twelve months prior to filing the application, and there must be no reasonable likelihood of you resuming your married life. Once this has been established, either party to the marriage can apply for a divorce in Australia provided that at least one party:
- Regards Australia as their home and intends to live here indefinitely;
- Is a citizen of Australia, whether by birth, descent or by a grant of citizenship; or
- Ordinarily lives in Australia and has done so for at least twelve months and one day before the filing of the Application.
The court needs to be satisfied that proper arrangements have been made for any children under eighteen years of age prior to making a divorce order.
How to obtain a divorce if married overseas: separation under one roof
If you and your former partner have separated, but have continued residing in the same home, it is still possible to apply for a divorce but there are additional rules and requirements that you will need to satisfy before a divorce order can be made by the court.
The courts in Australia do not consider why the marriage ended, as there is a no-fault principle in divorce under the Family Law Act 1975.
How to obtain a divorce if married overseas: factors to consider
If you were married overseas, the additional factors that you might need to consider are as follows.
Is the marriage recognised here?
It is not possible to register an overseas marriage in Australia. However, an overseas marriage will generally be recognised in Australia if it was a valid marriage under the local law at the time the marriage was entered into and would have been recognised as valid under Australian law if the marriage had taken place in Australia.
The Marriage Act 1961 lists a number of exceptions to the recognition of overseas marriages by Australia. If there is doubt around whether the marriage is valid in that country, then expert evidence should be obtained.
The marriage certificate
If you have not already filed a copy of your marriage certificate in other proceedings, you will need to file a copy of this with your Application for Divorce. If your marriage certificate is not in English, you will need to arrange for it to be translated by an accredited translator and file the translated certificate with an affidavit from the person who undertook the translation.
Where is your spouse living?
You will generally need to know where your spouse is currently living so that your application can be served on them. If you are unsure of your spouse’s current whereabouts, you might need to file an Application seeking orders for substituted service, or an order that the requirement of service is dispensed with.
Can a divorce be obtained in another country?
If an application for divorce could be made in another country, you should seek legal advice in both countries to ensure you are making an informed decision on which is the most appropriate country to file your application for divorce. You should ensure that if the divorce order is made in Australia, and there are assets in another country, that you are not then stopped from bringing proceedings in that country. You should consider any advantages, disadvantages, costs and ease of the process in each country. It is advisable to obtain legal advice about these issues prior to filing an application for divorce in Australia.
How to obtain a divorce if married overseas: the court process
If you decide that Australia is the most appropriate country to file your application for divorce, the process is as follows.
- You or your lawyer prepare the necessary forms that are required in your circumstances for you to sign and once signed, file them with the court;
- There will be a filing fee payable when filing your Application. If you have a current concession card or meet the court’s criteria for financial hardship, you may be eligible for a reduced filing fee;
- Once filed with the court, your application will be assigned a hearing date. Whether or not you need to appear at the hearing will depend on your circumstances;
- Unless you and your spouse have filed a joint Application for Divorce, you will then need to serve your spouse with the sealed documents;
- Once made by the court, a Divorce Order will take effect one month and one day after it is made.
Once filed and served, your spouse can only oppose the application for divorce if:
- You have not been separated for twelve months and a day before the application was filed; or
- The court does not have jurisdiction (ie. the power to make a divorce order).
You should also keep in mind that a Divorce Order in Australia does not resolve property matters, financial support or parenting arrangements, it only recognises that your marriage has ended. You have twelve months from the date that your Divorce Order takes effect to initiate proceedings for property settlement or spouse maintenance without leave (ie. permission) from the court to do so. Such leave can be difficult to obtain so you should diarise this time limit and ensure you comply with it.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Leanne Stuchbery - Senior Associate - Brisbane
Leanne holds a Bachelor of Laws and a Bachelor of Legal and Justice Studies from Southern Cross University and a Graduate Diploma in Legal Practice, Skills and Ethics from Griffith University. She was admitted as a solicitor in the Supreme Court of Queensland and the High Court of Australia in 2005. Leanne has practiced predominantly in family law, but also...
