Where should I get divorced?
In the globalised world we live in, it is not uncommon for parties to have married overseas, have lived overseas for parts of a relationship, or for one party to be living overseas when a divorce is filed. In these situations, it’s important to consider which country is best when contemplating filing a divorce.
If you got married overseas, generally the marriage will be recognised in Australia if:
- the marriage was valid in the overseas country; and
- the marriage would have been valid if it had been done in Australia.
Application for Divorce
In order to file an Application for Divorce in Australia, you or the other spouse must satisfy one of the following conditions:
- born in Australia or an Australian citizen by descent; or
- an Australian citizen by grant of citizenship; or
- present in Australia (and have lived in Australia for at least the previous 12 months) and intend to continue living in Australia.
If you or the other spouse satisfy one of the above conditions, you will be eligible to apply for a divorce in Australia. In order to apply for a divorce, you must have been separated for at least 12 months, which under the Family Law Act indicates that the relationship has irretrievably broken down.
Issues may arise however, if one party files for divorce in Australia and the other spouse commences proceedings in an overseas jurisdiction. The conflict then becomes a matter for the court to determine which jurisdiction is more appropriate, having regard to all the circumstances.
When considering this question, the court may consider a number of issues, including:
- whether the foreign court will recognise the order made in Australia;
- whether Australia will recognise any orders made by the foreign court;
- where proceedings were first commenced;
- the parties connection with each jurisdiction;
- parties’ ability to participate in each jurisdiction.
If jurisdiction is in question, it is important to obtain legal advice as soon as possible to be at the forefront of any issues that may arise.
Family law advice
Each case is different, as there are other issues and circumstances at play. If you require advice specific to you, please call our office on (07) 3221 4300. Otherwise you are welcome to fill in our online form to arrange a fixed fee, no obligation initial consultation.