Divorce around the world
Being a multi-cultural country and having exposure to media from around the world, it can be confusing for people in Australia to know what is required for a Divorce. Let’s clarify the position in Australia but also have a quick look at the situation in some other parts of the world.
Every country in the world allows its citizens to divorce but different requirements apply to how that can happen, that is, except for (2) countries. The Philippines (though Muslims Filipinos have the right to divorce) and the Vatican City, have no procedure for divorce. In these two countries, there are only laws that allow for the annulment of marriages.
Also, interesting is the fact that divorce only became legal in Malta in 2011.
In general, divorce is illegal in the Philippines. Under Philippine law, Filipino citizens married to foreign nationals who divorce in the other spouse’s country of residency are considered legally divorced and able to remarry. Filipinos not married to foreign nationals who divorce in other countries but who remain legal residents of the Philippines, are still considered married under Philippine law.
The only options for other Filipinos are legal separation or annulment, and for either one the process is lengthy and expensive.
There is no process for obtaining a divorce in the Vatican state. Arguably, there is no need for a law for divorce in the Vatican because most citizens of the Vatican state are either living outside the country state or are members of the Roman Catholic clergy who take a lifetime vow of celibacy.
Vatican City allows annulment or the invalidation of a marriage based on a number of grounds, however the process is difficult and lengthy.
Most divorces in Japan are consensual and fairly straightforward. However, there is no provision for joint ‘custody’ of children under Japanese law, unless the divorce was finalised in another country, where the child has citizenship and custody was established there. There are provisions for child support but not visitation; it is uncommon for children to see the other parent frequently after a divorce.
From an Australian perspective, another unusual aspect of Japanese family law is that women have to wait six months before they can remarry after a divorce. Men have no such restrictions. A woman is also required to take her husband’s surname upon marriage, and it takes complicated legal processes to restore her maiden name after a divorce.
The first French divorce law was passed on 20 September 1792, during the French Revolution. It was subsequently modified in 1793 and 1794, and eventually incorporated in the Civil Code. It was repealed on 8 May 1816, due mainly to the influence of the Catholic church, after the restoration of the Bourbon kings. The divorce law was re-established by law on 27 July 1884.
The process for divorce differs depending on the ‘reason’ sought for the divorce. But in all divorces the other issues that often arise, such as parenting arrangements, property settlement and maintenance are resolved as one matter. This is the same process that is followed in most of the Civil Law countries.
Egypt introduced no-fault divorce in 2000, but Egyptian women still face unequal access to family courts and protections under the law. Personal status laws in Egypt establish that Islamic rules on marriage and divorce prevail except in cases where both husband and wife are non-Muslims and from the same religious denomination. Under the current law, for instance, a Catholic husband with a Coptic wife could be subject to Islamic law.
Women can now file for no-fault divorce, but must give up all financial and property rights to do so and repay any dowry their husbands gave to the wife’s family upon the marriage. To receive any sort of support they must be able to prove their husband harmed them during their marriage, often needing eye-witnesses even for physical abuse. Egyptian men, however, have unconditional rights to divorce and don’t even need to go to court to obtain it. Women filing for divorce have to go through mediation with their estranged husband; men have no such requirement.
International Recognition of Divorces
Australia is a contracting state to the Hague Convention on Recognition of Divorce and Legal Separations enacted in 1970. Australia has acceded to the Convention by inclusion of Part XII and specifically section 104 of the Family Law Act 1975 which states:
A foreign divorce will be recognised as being valid in Australia if it was effected in accordance with the laws of that foreign jurisdiction and at the date of those proceedings either one or both spouses had a sufficient connection with the foreign jurisdiction.
Divorce in Australia
Since 1974 Australia has had a ‘no fault’ system for divorce, this means that 12 months separation is required. The effect of a Divorce application is to dissolve the marriage, it does not address any other issues, such as, property division or parenting arrangements. For more information see our article ‘Separation and Divorce’.
To get in touch with an experienced divorce lawyer in Brisbane, contact us. As one of Queensland’s largest specialist family law firms, our combined knowledge of divorce law is exceptional. Call us on (07) 3221 4300 or fill in our online form here to find out how we can assist you throughout your divorce proceedings.