In a Divorce Settlement, What Happens with Overseas Assets?
Overseas assets are a common issue in Australian family law proceedings, particularly for those couples who have assets and/or liabilities located outside of Australia.
Because of the legal complexities (and because such assets form part of the pool of property available for division) it is important that a party informs themselves about the nature and extent of any offshore property owned by their ex-spouse.
This article will discuss how Australian courts handle overseas assets, the need to disclose them, and how international family law affects asset division.
Are international assets considered as property of the relationship?
As a starting point, just because certain assets are located offshore does not mean that they are excluded from the pool of property to be divided or exempt from being disclosed. If this were the case, it would complicate and frustrate the Court’s task of achieving a just and equitable property settlement, and one party would be able to shield their wealth from the other by simply transferring it overseas.
The need to disclose overseas assets
It is essential to disclose all assets, including those located outside of Australia, during property settlement negotiations or family law proceedings.
Failure to disclose overseas assets can result in serious consequences, including legal penalties and a court order to pay a financial penalty.
International family law and asset division
International family law can complicate the division of assets during separation and divorce proceedings. Different countries have varying laws regarding property settlement, and it can be difficult to determine which laws apply in any given case. However, Australian courts are still able to take into account assets located overseas and the relevant laws governing them.
Overseas property and the enforceability of Australian Court orders
The Family Court of Australia is empowered to make property settlement orders in respect of international assets. However, such orders may be neither effective nor appropriate in the circumstances of the individual case.
Questions to be considered, particularly where a substantial amount of property owned by either party is situated outside Australia, include:
- Is an Australian Court the appropriate judicial body to hear the matter, as opposed to a foreign judicial body?
- Is an order of the Family Court of Australia in respect of the relevant overseas asset/s likely to be effective (as in enforceable)?
Depending on the nature and extent of the financial resources that a party holds abroad and where each party ordinarily resides, the dispute may be more suited to determination by the courts of a country other than Australia.
There is also the fact that an order of an Australian Court is not automatically enforceable (binding) in a foreign jurisdiction, so unless the legal system of the country in which the asset is located elects to recognise and implement an order of the Family Court, it may be ineffective.
A court order concerning overseas assets owned by one party may also be impractical, unnecessary or inconvenient for other reasons, such as where there are sufficient onshore assets (i.e. assets in Australia) to meet the entitlements of the other party.
Should a property settlement be pursued in Australia or in the foreign country where the asset is located?
It is generally recommended to pursue a property settlement in Australia rather than in the foreign country where the asset is located. This is because Australian courts are better equipped to deal with complex international family law matters (when involving Australian citizens / permanent residents) and have considerable experience with these types of cases.
How are overseas assets factored into property settlements in Australia?
Because of the difficulties outlined above, the Australian Courts will typically refrain from making an order concerning the international property itself. Instead, the Court will ascertain the value of the offshore asset in question (often by obtaining an independent expert valuation) and add that value to the pool of property available for division. In this way, the Court takes into account any overseas assets without having to directly deal with those assets via a Court Order that might not be enforceable in the foreign jurisdiction.
Where the owner of foreign assets resides permanently in Australia, enforceability will be less of an issue. An order requiring the party to transfer or sell the foreign property may well be appropriate in that case. However, to protect themselves and ensure the property settlement is binding in both jurisdictions, the parties may wish to obtain equivalent orders in the relevant overseas jurisdiction.
Do Australian courts have jurisdiction to deal with overseas assets and debts?
Yes, Australian courts do have jurisdiction to deal with overseas assets and debts. This means that even if an asset is located outside of Australia, it can still be considered in the property settlement process. However, it is important to note that some countries may not recognize or enforce Australian court orders, so it is essential to seek legal advice in these situations.
Are taxation consequences, both in Australia and/or overseas, associated with the overseas asset taken into account?
Yes, taxation consequences associated with overseas assets will be taken into account when determining property settlement. It is important to disclose all tax-related information related to overseas assets during property settlement negotiations or family law proceedings.
What about a partner who moves assets overseas to hide them?
The requirement of full and frank disclosure applies equally to onshore and offshore assets.
If one party neglects to include international assets in their Financial Statement, the other party can apply to the courts for an order setting aside any prior settlement reached. The proceedings may be reopened and the non-compliant party penalised.
Can the Family Court Enforce an Order regarding Overseas Property?
The Family Court can enforce an order regarding overseas property if the property is located in a country that has a reciprocal agreement with Australia. However, if the property is located in a country that does not have a reciprocal agreement, enforcement may be more difficult. In these situations, it is essential to seek legal advice to determine the best course of action.
- In Australian divorce proceedings, overseas assets are part of the pool of property taken into account in any property settlement between the parties.
- While the Family Court of Australia can make orders concerning foreign assets, those orders may not be enforceable outside Australia.
- In addition to securing orders in Australia, it is advisable for parties to a divorce to seek a property settlement agreement in any overseas jurisdiction where property of the relationship is located.
In family law proceedings where one party owns foreign assets, complicated issues can arise. If you or your former partner own property abroad and you are unsure about how best to protect your interests, you should seek legal advice without delay. Contact us today for advice or representation in any family law matter.
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