Australian Expatriates: Divorce Proceedings
Divorce is a difficult matter at the best of times and the process is usually made even more complicated if you are an expatriate. We have no hesitation in saying that you will absolutely need experienced legal advice either in Australia or in your host country and that you should seek professional advice as early in the process as practicable. What follows is a very short introduction to the topic and some of the issues which commonly 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 spouse for no less than twelve months.
Consequently, for example, 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 the period of separation required is two years, rather than twelve months.
Court attendance in Australia
If there are no children under the age of 18, then you do not need to actually attend Court for the purpose of the divorce application - and hence there may be no need to return to Australia for proceedings. If there are children under the age of 18 involved, then you and your estranged spouse can also sign a joint application so there is no requirement for an appearance in Court when the divorce goes through. Note that the Court also has the power to waive the requirement that you attend Court.
Divorce and Property Settlements
It is important to appreciate that a divorce and property settlement are two different legal processes. A divorce is the legal termination of a marriage, whilst a property settlement is the formal division of property following a couple's separation. Australia is an "equitable distribution" country, meaning that on the divorce or death of a spouse, net wealth is not split evenly (i.e. 50/50) as “community property”. This is one of the reasons why the jurisdiction in which a divorce is initiated is important and needs to be addressed as a first priority.
Australian family courts consider the following matters when deciding how the property and assets in a relationship should be divided between the parties:
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 differences in approach adopted by other countries is one of the reasons why an early assessment of the preferred jurisdiction in which a divorce is initiated is important. In that context, the following are some of the important considerations:
Parties need to consider their options very carefully when it comes to choosing the jurisdiction they wish to initiate their divorce proceedings and what is in their overall best interests.
Enforceability and Tax Issues
It is common for expats to have assets both in Australia and other jurisdictions - and in that situation the Australian courts have the power to make property orders taking into consideration assets outside of Australia. However, the enforcement of those orders, which is particularly important if the bulk of the assets are held outside Australia, can be very difficult in practice - even in other Western jurisdictions.
The best course of action in these circumstances can also be dependent upon specific tax advice; particularly if the orders involve the sale of assets and potential capital gains. A very specific but important example includes an order for the sale of a main residence in Australia - such an order, if all the other requirements are met, may enable the avoidance of Australian capital gains tax on the sale of the property under what is called the life events exclusion.
Depending on circumstances, and particularly depending on where assets are located and the impact of local tax laws around CGT and inheritance, tax advice from a number of jurisdictions may be absolutely essential if you are to minimise any adverse tax consequences. Multiple jurisdictions also makes it more complicated to ensure that there has been "full and frank disclosure" of assets outside Australia, and sometimes this will require investigations in the overseas jurisdiction.
Exfin is experienced in providing access to, or arranging, tax and other professional advice in other jurisdictions.
Custody and Parenting Issues
Legal issues around the custody of children and parenting arrangements can be exceptionally complex, particularly if the parents have different nationalities and base countries, and can be impacted significantly by the country of residency.
Note that Australian courts will not usually include long-term spousal maintenance orders as part of a property settlement because one of the prime objectives is to finalise matters between the parties as much as possible - therefore, the property settlement is supposed to have regard for the "future needs" of the parties. This is in contrast to the approach taken in a some other overseas jurisdictions where there are substantial numbers of expat Australians, such as the UK and in the US where it can be referred to as "alimony".
In Australia the law with respect to 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 receive 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.
Very few Australian family lawyers have experience with international matters; please contact us using the form at the bottom of this page if you would like to engage a qualified family lawyer to provide advice in your circumstances. Following an initial discussion either in person, by telephone or Zoom, you would receive a fee quotation in advance of any professional advice or services being provided.