How To Get a Divorce If Married In Another Country

Divorce in Australia

Divorce in Australian law operates similarly to other developed countries. We have no-fault divorce, meaning that the reason for the marriage breakdown isn’t relevant. The married couple only needs to show that the marriage broke down irretrievably. Australia also recognises same-sex couples.

Eligibility to apply for a divorce

All legally married couples seeking a divorce must meet at least one of the following criteria:

• You’re an Australian citizen. There are different ways to attain citizenship.
  • You were granted citizenship after immigrating to Australia. You may need to produce your citizenship certificate as proof.
  • You have Australian citizenship by birth or by descent. This means that at least one of your parents is an Australian citizen or permanent resident.
• You have legally resided in Australia for the past 12 months and regard Australia as your primary residence for the foreseeable future. You must provide proof of your residency. This may include:
  • A passport with your date of arrival.
  • A valid visa.

In addition to the residency requirements, you must also satisfy the following:

• At least one spouse must regard the marriage to have ended. They must communicate this to the other party.
• You have completed a separation period of at least one year and one day.
• Produce a marriage certificate.

Mandatory separation

There isn’t any official application process to begin a separation. Consequently, the start of the separation period isn’t always clearly defined. The Federal Circuit and Family Court can infer when you separate based on various factors, such as:

• Living in different residences.
• Informing government agencies such as Centrelink of your separation.
• Informing family and friends.

Separated under one roof

The Court understands that it’s not always possible for spouses to maintain independent accommodations when they’re seeking a divorce. The law makes concessions for parties who need to continue cohabiting. What’s important is that the couple can demonstrate that they’re living separate lives.

Each spouse will need to submit an affidavit that explains how their living arrangements have changed after ending the relationship. If one spouse doesn’t complete an affidavit, a third person who’s familiar with the couple’s circumstances can complete one instead.

Marriage certificate

The parties will need to submit their marriage certificate with their divorce application. If you were married overseas, you must get your foreign marriage certificate translated if it’s in a language other than English. You can get an official translation from an accredited translator through the National Accreditation Authority for Translators and Interpreters (NAATI). Find a translator through NAATI’s online directory.

Divorce application process

Most couples handle their divorce online. There’s a straightforward step-by-step process to walk you through the procedure. You can apply for a divorce alone or as joint applicants.

Joint application

Applying together makes the divorce process easier. Both spouses must sign the Affidavit of eFiling (Divorce) in the presence of a Justice of the Peace. The applicants aren’t required to attend a court hearing as part of the divorce proceedings. You will receive your divorce order a month after submitting the application.

Sole application

Sole applications are more complicated. Once an application has been filed, the applicant must serve the court documents on the respondent. The divorce papers must be served by a third party who is at least 18 years old. There are professional process servers available to complete service on your behalf. You may also serve the respondent’s lawyer if they accept service.

What if your former partner lives overseas? 73 countries are currently signatories to the Hague Service Convention. This convention streamlines the service of standardised legal documents across international jurisdictions. You can apply through the relevant court registrar to have the documents transmitted to the receiving country’s central authority. You must include:

• A letter of request.
• The documentation to be served.
• A certificate of service that the foreign authority will complete.
• Certified translations of the documents if necessary.
• An undertaking to cover the costs.

The foreign court will return the certificate of service once it has been completed. If the service couldn’t be completed, a certificate of non-service will be returned with the reasons why it wasn’t possible.

A certificate of non-service is usually enough to warrant either:

• Substituted service, where a party who can bring the service request to the respondent’s attention is served instead. This could be a family member or colleague.
• Dispensation of service, where the Court waives the service requirement. You must show that you’ve made all reasonable attempts to contact your ex-partner.

Divorce hearing

The only circumstance in which you’re required to attend a court hearing is if you are a sole applicant with children under 18 years of age. The Court wants to ensure that you’ve made proper arrangements for the children who were considered part of the family prior to separation. This may include a child adopted overseas or a foster child.

There are other situations where you may wish to attend the hearing. This includes if you cohabited while separated and need to clarify the circumstances, or if you needed to apply for substituted service.

Family law property settlements

There are other family law matters to attend to during divorce, such as a property settlement. In an overseas marriage, there may be assets held in a foreign territory. This property must be included when undertaking your financial disclosure.

Managing foreign property division can be complicated. Depending on the amount of the marital assets held overseas, it may be more appropriate to arrange a property order in that jurisdiction to avoid financial hardship. Get specific legal advice about your entitlements to foreign-owned property, such as retirement funds and real estate.

Parenting arrangements

Making satisfactory arrangements with a co-parent is one of the most important aspects of a divorce. In some circumstances, there may be a risk that a child will be taken overseas by your spouse. If this is a concern, you can seek an order from the Court that will:

• Prevent the child from being issued a passport.
• Requires the child’s passport to be delivered to the Court.
• Prevents the child from leaving the country.

The Court can request that the Australian Federal Police place the child on the Airport Watch List and help with implementing the Court order.

From our clients

I cannot thank the team at Lawcorp more for the support they have provided my wife and I during a recent Family Court Matter. We got a great outcome and were so impressed with the compassion, professionalism and organisational skills of the team from Law Corp. I would give them 6 stars if I could!

– Andrew Williams

If your marriage occurred overseas, you may be worried about your ability to get a divorce in Australia. Our team works to ensure that you can meet the eligibility criteria so you can achieve positive parenting and property orders through the Federal Circuit Court.

Conclusion

A marriage overseas can be ended in Australia, assuming certain criteria are met. The basic process is the same. However, there are specific issues to consider. It’s important to have a translated marriage certificate. If you’re a sole applicant, you may need to serve the divorce papers on a spouse living overseas. There could also be matters concerning foreign-owned assets and risks of a child being removed from the country.

For general advice and further information, contact our office today.