Married In Australia – Divorce Overseas

Married In Australia – Divorce Overseas

Married In Australia - Divorce Overseas

With international travel a day-to-day occurrence, it is pretty common for people from different countries to meet and marry and divorce across countries. For example, you may have married in Australia and divorced overseas if the relationship failed to stand the test of time. Overseas divorces are recognised in Australia, so long as they meet the conditions set down in the Family Law Act 1975. This article will look at marriage, divorce, and a few issues that can muddy up the waters if you don’t get some good legal advice.


What is Marriage in Australia?

In Australia, the Marriage Act 1961 regulates marriage. The Act describes marriage as the exclusive union between two people who entered into the contractual relationship voluntarily and for life. There are restrictions in Australia as to who can legally marry. These restrictions include a minimum age requirement and an expectation that neither person is married to someone else. We’ll explore a few of these requirements here. 

What is Meant By Marriageable Age?

According to section 11 of the Act, a person aged 18 or older is of marriageable age. The very next section, though, tells us that a person aged 16 or older can put their application to marry before a magistrate or judge in order to marry despite their technically being underage. For the judge or magistrate to grant such an order, they must be satisfied that the circumstances are unusual or exceptional enough to warrant the order. Gaining parental permission for the marriage of a minor is common practice, but that requirement can be waived if appropriate circumstances exist. 

Why Would a Marriage Be Void in Australia?

Under the Marriage Act, a marriage would be void for one or both of the following reasons. 
  • The relationship is prohibited by law. For example, the parties are siblings or a parent and their child, including an adopted child. (These types of relationships are called incest, which is illegal in Australia.)
  • Both members of the relationship were legally married to someone else when the marriage was solemnised. (This situation is otherwise known as bigamy, which is also illegal in Australia.)

What is Divorce?

The legal termination of a marriage contract is known as a divorce. To legally dissolve a marriage, one must apply for a divorce. You may have to attend a family court hearing after you make a divorce application. The Family Law Act in Section 104 allows for the recognition of an overseas divorce order as valid under some conditions. The divorce will be recognised by the federal circuit court if one or both of the people in the marriage met any of the following requirements when the divorce was granted:
  • The respondent ordinarily resided in the overseas jurisdiction; or
  • At the time of the proceedings commencing, the applicant ordinarily lived in the overseas location; or 
  • The last place the couple cohabited was the overseas jurisdiction; or
  • Either or both of the parties were nationals of or domiciled in the overseas country.
The test to apply to find out whether a divorce order is valid in Australia, according to the rules of private international law, is whether or not one of the people in the marriage has a substantial connection with the foreign country where the divorce order was made. If the residency requirements set out in the Act aren’t met, the foreign divorce orders may still be recognised.  The magistrate can also refuse to recognise any divorce orders made overseas where such an order would not comply with the common law principles. For example, a refusal to recognise might be the outcome if one party was denied procedural fairness or to recognise the order would be manifestly contrary to public policy. 

What Conditions Does My Foreign Divorce Need To Meet To Be Recognised In Australia?

For one, the person you are divorcing, otherwise known as the respondent, must be a citizen or resident of the country in which you are divorcing. If one of the divorce applicants was a resident of the country when they applied for the divorce, it would be considered valid in Australia. The complete list of conditions is included in the Family Law Act 1975. If you are an Australian citizen, it would be advisable to seek legal advice before applying for a divorce to learn whether getting a divorce on foreign soil will benefit you. Some countries have a different method for working out the financial and family law proceedings that typically accompany a divorce. You may discover that the results would be better for you were you to divorce in Australia.  You need to make sure your foreign divorce is effected lawfully, according to the laws of the country in which it was gained, particularly if you intend to remarry in Australia because polygamous marriage is not permitted by Australian law. An invalid divorce in the first place cannot be considered valid in Australia.  A divorce granted overseas will, in all reasonable likelihood, be accepted in Australia if one member of the couple entering into the divorce was either a citizen or ordinarily resident in the country that issued the divorce at the time of the divorce proceedings. An overseas divorce will typically be accepted in Australia so long as both parties were afforded natural justice and all the proper arrangements were made, meaning they were both aware of the divorce application and were able to respond to it. In addition, they were able to participate in the divorce application hearing.  In a nutshell, the factors making an overseas divorce valid in Australia reflect the following laws for a valid divorce.
  • One of the married couple must regard Australia as their home and mean living here indefinitely or being an Australian citizen.
  • When the divorce application was made, at least one person must usually reside in Australia or be an Australian resident. They lived here for the 12 months leading up to the divorce.
  • If there is a sole applicant for the divorce, that person must serve the divorce application on their spouse to allow them to respond.
The same rules bind Couples who are married overseas and are seeking a divorce in Australia. In addition, they must have been married for a minimum of two years and separated for at least one. Finally, if their marriage certificate is in a language other than English, they must supply a translation. 

Parenting Orders Made Overseas

If you have overseas court orders, particularly parenting orders, there is a process in place to register those orders in Australia. Firstly, those orders cannot be registered in Australia unless there is reason to believe that the child, one of the child’s parents or another person with rights relating to the child under a court order are present in the country. Countries that Australia has agreements with to allow court orders to be registered within our borders, making them enforceable here, are listed in Schedule A of the Family Law Regulations 1984. The method by which the court orders from these countries are registered is outlined in Regulation 23. A request must be sent to the International Family Law Section with three certified copies of the parenting order and a certificate from an officer of the court declaring that the order is enforceable in that jurisdiction or country at the date of the certificate. Where the country that made the parenting order is not on Schedule 1A of the Family Law Regulations 1984, you may need to obtain new parenting orders in Australia. An application for consent orders can be made if both parties agree. Alternatively, they can apply for parenting orders to the court. 

Child Support When A Parent Or Child Lives Overseas

In Australia, the Department of Human Services (DHS) manages child support in Australia. Child support is payable whether one parent or the child lives overseas or in Australia. The DHS can help with Aussie child support payment assessments and make and receive payments because receiving child support payments from parties outside of Australia can be complicated. The Department of Human Services (DHS) manages child support in Australia.  Child support is still payable if one of the parents or the child lives outside of Australia. The department can also help register overseas court orders, assessments and agreements about child maintenance made in a reciprocating jurisdiction. Reciprocating jurisdictions are listed on the DHS website. When registered with the DHS, a maintenance order, assessment or agreement, otherwise known as a maintenance liability, allows the department to help with the collection and transfer of child support payments. You will need to supply the DHS with a copy of the overseas court order, assessment or agreement, including an amount of periodic child support to register the maintenance liability in Australia. If you want to apply for child support payments from someone living in Australia, you should contact the maintenance authority in the country where you are residing. In addition, there’s an international application for child support assessment form for receiving or paying parents residing outside of Australia for people living in reciprocating jurisdictions. Parents who can agree on who will pay child support, how much should be paid, how often, and the payment method can self-manage the situation.

Frequently Asked Questions

1. Is There Any Financial Assistance If I Can’t Afford the Court Filing Fee for My Divorce Application?

Answer: It is possible to have your filing fee reduced if you:
  • You are entitled to Commonwealth health concessions (so long as you’re the primary cardholder of entitling you to Commonwealth health concessions, such as health benefit cards and pensioner concession cards). 
  • Receive Legal Aid, Austudy, Abstudy or Youth Allowance.
  • Are represented by an approved legal aid scheme or service, including approved community legal centres.
  • Are under 18 years of age. 
  • Are a prison inmate or detained in a public institution by law. 
There is also a Reduction of Fees (Financial Hardship) application that you can file if you can’t afford court fees and the above categories don’t apply to you. The family law court will consider your personal circumstances when considering whether it is appropriate to offer a reduced fee. 

2. What do I Beed to Supply If I Have Children Under 18 Years if I File for Divorce?

Answer: Suppose you have children born of the marriage who are under 18 years of age. In that case, you must provide details of any and all arrangements you have made regarding them in your application for divorce to the family law court of Australia. These details must include such particulars as to where they will live, where they will attend school, before and after school care arrangements, health updates, the financial support provided and how their time will be apportioned between parents. 

3. What is Meant by a ‘Child of the Marriage’?

Answer: Any natural child of you and your spouse, including any born before you married or after you separated, is deemed a child of the marriage. The term also includes children you and your spouse adopted and any child who was treated as a family member before your final separation, including foster children and step-children. 

4. Do I have to Attend the Divorce Hearing?

Answer: Whether you’re required to attend the divorce hearing or not depends on a few factors. If you’ve filed a sole application for divorce in Australia and there is a child of the marriage under 18 years of age at the time you filed, you must attend the hearing. You also need to attend if you indicated in your application that you wished to attend. Suppose either of you has objections to the divorce being heard while either party is absent or the respondent opposes the application for divorce by filing a Response To Divorce.  Other reasons to attend the family law hearing include:
  • If you’ve applied for an order for substituted service or dispensation of service because you can’t find your spouse to serve the necessary documents.
  • You have had to supply additional affidavits explaining circumstances such as living separately under the same roof, being married for less than two years, and any other situation that might impact your case outcome. 
You must have all of your documents with you at the court hearing, including your application and service documents. 

5. How will I Receive My Divorce Order?

Answer: Your divorce order can be downloaded from the Commonwealth Courts Portal the next working day after the order is finalised. Each original registered divorce features a signature and electronic seal. The original divorce order will be the family law court’s official record, the evidence that the order was made.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Divorce or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

Related articles
Family Court
Family Law Court

The Family Court in Australia is a court that deals with family-related legal disputes, including divorce, child custody, and property Read more

What Is An Apprehended Violence Order (AVO?)

AVO's, or Apprehended Violence Orders, are legal orders that aim to protect individuals from violence or harassment. These orders can Read more