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Divorce Overseas - Expatriate Issues
Australian Expatriates : Divorce
Divorce is a difficult matter at the best of times, and made more complicated by being an expatriate. We have no hesitation in saying that you will need legal advice either in Australia or in your host country, and sometimes both, if the jurisdiction in which the property proceedings will be held is likely to have a significant impact on proceedings. What follows is a very short introduction to the topic and some of the issues which arise:
Australia has clear, and comparatively easily satisfied, divorce laws. Provided you are either an Australian citizen, domiciled in Australia or have been resident in Australia for at least twelve months, you can file a divorce application once you have been separated from your husband or wife for no less than twelve months. Thus, if you are an Australian expatriate living in London and you satisfy the citizenship requirement, there is no reason why you cannot file a divorce application in the Federal Magistrates Court of Australia if your marriage breaks down. The benefit of this approach is that in the UK, as we currently understand it, the period of separation required is two years.
If there are no children under the age of 18, then you also do not need to be actually in Court for the purpose of the divorce application. If there are children under the age of 18, then you and your estranged spouse are able to sign a joint application so there is no requirement for an appearance in Court when the divorce goes through. Note however that the Court has the power to waive the requirement that you attend Court.
One difficulty associated with obtaining a divorce overseas can be, in certain circumstances, that if you are divorced in a particular country you can only have your property proceedings in that country. There is no such restriction in Australia as of right, but if you are in a country where the property settlement is governed by where you are divorced, the other party could bring an application to restrain you from proceeding with a property settlement in Australia.
The country or jurisdiction where property proceedings are held can have a very significant impact on the how property and assets are divided – with jurisdictions often following very different rules when it comes to the apportionment of property. For example, in some jurisdictions a 50/50 settlement applies in most, if not all, cases and very little regard is had to the precise circumstances applying within the marriage. Thus, parties need to consider their options very carefully when it comes to considering where they wish to initiate divorce proceedings and whether it is in their overall best interests.
In Australia the law in respect of a divorce is that, provided you satisfy the jurisdictional requirements and your documentation is correct, then a date is fixed for Court and your matter will normally proceed on that day i.e. the first return date. You will then normally get a final Order for Divorce (it used to be called a Decree Absolute, but the terminology has now changed) one clear month i.e. one month and one day after the date you are in Court. In fact you will not really receive it for a couple of weeks after that. You are then free to remarry, subject, of course, to the notice requirements under the relevant marriage legislation.