How does international divorce work?

How does international divorce work?

By cropped movement legal

· Read time: 5 minutes

An international divorce occurs when you or your former spouse come from a jurisdiction outside Australia, or alternatively, if you and your former spouse are Australian born and one or both of you are living overseas at the time of separation.

In other words, you may be able to apply for a divorce under Australian law if you are residing here despite not being a citizen.

Similarly, if you are an Australian living overseas, you may still be able to apply for a divorce under Australian law.

Is your marriage recognised in Australia?

Before proceeding with an international divorce, you must ensure your marriage is valid. An overseas marriage cannot be registered in Australia, however the foreign marriage certificate is evidence that marriage occurred.

During a divorce, this will need to be translated into English (if it is not originally written in English).

The marriage will be valid in Australia if:

  1. It is recognised as valid under the jurisdiction of the country in which it occurred
  2. It would have been recognised as valid under Australian law if it were to have taken place here.

Some factors may stop a marriage from being recognised as valid.

These include:

  • If you or your spouse were married to someone else at the time of your marriage
  • If you were under 18 at the time of marriage
  • If there is not adequate evidence that both parties gave real consent to the marriage

No-Fault divorce:

Once you ensure your marriage is recognised under our jurisdiction, you can proceed with your divorce. Under Australian law, this is fairly simple as we have a ‘No-fault’ system. You just need to show that:

  • You and your former spouse have been separated for at least 12 months
  • The marriage has broken down and there is no likelihood of you and your former spouse getting back together.

Next, all you have to do is fill out the required paperwork from your jurisdiction.

The Court does not consider what caused the end of your relationship.

Which jurisdiction?

If you or your former spouse have some connection to a jurisdiction other than Australia that requires less than 12 months separation, you may be able to apply for a divorce under their law instead (to speed up the divorce process).

This is because Australia recognises a divorce obtained from an overseas jurisdiction as valid, provided certain conditions are met.

The person seeking a divorce in the international jurisdiction must be either a resident or citizen of that country.

You may want to consider and compare the following factors to help you decide in which jurisdiction to get divorced:

  • The time it will take to get divorced
  • The financial consequences
  • How a Court in a particular jurisdiction is likely to treat parenting disputes
  • The cost of obtaining a divorce

If you would like assistance to determine whether it is beneficial for you to divorce under another jurisdiction, get in touch with us via the contact form.

What about international divorce when children are involved?

When children are involved, the international divorce process can become more complicated, as you must prove that custody arrangements have been made and agreed upon. Parents must prove their earning capacity and individual roles in raising the children thus far.  

Here, there may be disagreements which can lead to increased tension and mistrust between you and your former spouse. For example, you might be scared of your former spouse attempting to take your children from one jurisdiction to another without consequence.

However, this can only occur if the jurisdiction is not a signatory of the Hague Convention.

How does the Hague Convention relate to international divorce?

The Hague Convention is a treaty that began in Australia in 1987 and is now recognised and followed by over 100 states worldwide.

The treaty functions to ensure that if your child is taken overseas by your former spouse, they are returned to Australia as quickly as possible. This prevents a parent from moving internationally with the primary goal of finding a court that will rule a custody battle in their favour. 

The convention states that wrongful retention of a child occurs when the custody rights of the other parent are breached. We understand that this is a very stressful situation to be involved in, and we can offer support and advice if needed.

What else do you need to consider with an international divorce?

Whilst the international divorce process is straightforward in most cases, there are some other factors to consider. These include:

Time limits on presenting the application of divorce

If your spouse is not living in Australia, you must serve them the divorce documents at least 42 days before Court proceedings.

The language your marriage certificate is written in

As briefly mentioned above, if your certificate is written in a language other than English, you will need a translator. The translator will also have to sign an affidavit. This is a written statement to ensure the translation is accurate and performed by a qualified person. 

Locating your ex-partner if they are overseas

If your spouse is not in Australia, you may find it hard to contact them and give them your divorce application. If this is the case, you can request either a substituted service or a dispensation of service. A substituted service involves you giving your divorce application to a third party who then passes it on. A dispensation of service occurs when you have attempted but failed to serve your divorce application to your spouse, and so the Court permits you to continue with the divorce process without doing this.  

If you would like assistance with navigating these services, get in touch with us via the contact form below. We are a team of divorce lawyers and family lawyers who would more than happy to assist you.

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