Overseas Assets in Australian Property Proceedings

When the court is tasked with determining how to alter property interests, the first step is to determine the “asset pool” (the total of all of the assets, liabilities and superannuation available for distribution). In short, assets liabilities and superannuation outside of Australia are usually included in the property pool. However, there are some important things to keep in mind:

• Overseas superannuation interests are not considered “superannuation” for the purpose of family law proceedings. You will need to obtain advice about whether the interest should be considered an “asset”, “financial resource” or should be excluded from the pool altogether. Also, unlike in Australia, an overseas superannuation interest may not be splittable or transferrable.
• Overseas real property will be subject to local laws. It may be necessary to involve a local solicitor or agent to help obtain an accurate valuation of the property and advice on any limitation to selling the property or other taxation consequences.
• You may face difficulties transferring funds out of certain countries, even with Australia family law orders.
• Where an overseas asset is not treated as property and included in the asset pool, it will likely be treated as a financial resources or as a “relevant factor” that the court considers when adjusting property interests.
• Family law orders made by the Family Court of Australia can be registered, then recognised in some countries. You should seek advice from a local family law solicitor about how to protect yourself and your assets from further proceedings overseas.

Lastly, consider making independent enquiries with local solicitors in countries (or regions if family law varies across that county) that may have jurisdiction to determine your property dispute. It may be more advantageous to formalise your property settlement overseas, than in Australia.

For advice or representation in any legal matter, please contact Armstrong Legal.