Just as no two marriages are the same, no two divorces are identical, especially when it involves an international element.
Divorces involving international elements, such as a marriage occurring overseas, present some unique legal challenges in Australia but it’s certainly not impossible.
In this article, we’re going to discuss how to get divorced in Australia if you were married overseas and cover matters such as the eligibility criteria, the recognition of overseas marriages, the divorce process in this context, and the importance of seeking professional legal advice from experienced divorce lawyers.
- Applicants must meet certain criteria to be eligible for an international divorce in Australia, including providing a valid and translated marriage certificate.
- Divorce proceedings are based on the irretrievable breakdown of marriage according to no-fault system, with joint or sole applications available depending on circumstances.
- Professional legal assistance is recommended when dealing with matters such as children welfare and financial settlements, as well as recognising overseas divorces in Australia.
Eligibility Criteria for Divorcing in Australia after Marrying Overseas
Initiating a divorce proceeding after an overseas marriage can seem daunting but it’s not an impossible feat at all. Having a clear understanding of the eligibility criteria can make the process a lot easier to understand.
Firstly, to apply for a divorce in Australia, you must either be an Australian citizen, have permanent residency, or have been living in Australia for at least 12 months. This eligibility extends to those who have married overseas and now regard Australia as their home.
Your divorce application primarily hinges on your marriage certificate, supplemented with other pertinent documents related to the marriage, separation, and any children or property settlements, including the necessary divorce papers. This paper trail serves as evidence of your marriage, particularly crucial if you were married overseas. However, remember to cross your t’s and dot your i’s, as an incomplete application could be denied by the Federal Circuit and Family Court of Australia, leading to further time and legal costs.
In essence, eligibility for an international divorce in Australia depends on your connection to the country, the evidence of your marriage, and the completion of all necessary paperwork.
Recognising Your Overseas Marriage in Australia
Like a passport stamp proving you’ve been to a foreign country, having your overseas marriage recognised in Australia is a crucial step in the divorce process. Not all marriages are created equal in the eyes of the law, so it’s important to ensure yours meets Australian legal requirements, especially when considering Australia if married overseas.
To have your overseas marriage recognised in Australia, you’ll need to provide a translated marriage certificate. This document is your golden ticket, proving that your marriage has legal recognition. However, some factors could lead to your marriage being delegitimised, such as if one of the parties was already married, closely related, or under the age of 18 at the time of the marriage ceremony.
The 12-Month Separation Requirement
In the Australian divorce system, timing is everything. Before you can even file an Application for Divorce, you and your spouse must have been separated for at least 12 months. This period of separation acts as a clear marker, demonstrating the irretrievable breakdown of the marriage.
However, just because you’re separated doesn’t mean you can’t discuss important issues. During this 12-month separation period, you’re able to address matters related to children and finance. Essentially, while the clock is ticking, you can still negotiate and plan for the future. Therefore, even amidst a marital breakdown, a positive aspect exists – ample time to strategise, prepare, and brace yourself for the divorce process.
No-Fault Divorce System in Australia
In the game of love, it’s not always about who’s right or wrong. Australia operates under a no-fault divorce system, which means you don’t have to play the blame game to get divorced. This system streamlines the divorce process, focusing on the irretrievable breakdown of the marriage, rather than who is at fault.
The foundation for divorce in Australia is simply that the marriage has irretrievably broken down, evidenced by a period of separation of at least 12 months. If the court is satisfied that all evidence and paperwork are accurate and sufficient, a divorce order will be issued. Hence, the Australian divorce system is less about blame attribution and more about acknowledging closure and embarking on a fresh start.
Joint vs. Sole Divorce Applications
Getting a divorce involves making crucial decisions, one of which is whether to file a joint or sole application. The choice hinges on your level of agreement and cooperation with your spouse. A joint application involves both parties working together to sign the divorce application, making for smoother sailing.
In contrast, a sole application is filed by one party, requiring additional steps such as serving the application to the other party. Whether you choose a joint or sole application, each path has its own unique journey.
Joint Application Process
In a joint application, both parties team up to weather the storm of divorce together. This process requires you to have been separated for at least 12 months and either be an Australian citizen or residing in Australia. During this process, you and your spouse will need to reach a consensus on the division of financial assets and arrangements for any children.
The joint application process requires certain forms and a copy of the marriage certificate. These documents must be submitted to the Federal Circuit and Family Court before a court hearing can be scheduled.
There are costs associated with filing a divorce application – you can get the most up to date cost information here. The costs may be split between the parties or paid by one party – that is up to the spouses divorcing.
Sole Application Process
Navigating the divorce process alone can be challenging, but the sole application process is designed for this very situation. This process is appropriate if there’s a breakdown in the relationship and both parties are not in agreement or are unable to cooperate, or if your spouse cannot be located or refuses to participate in the divorce process.
The sole application process requires you to notify your former spouse of the divorce application no less than 28 days prior to the divorce hearing date. Depending on your circumstances, you may not need to attend court, or you may be able to appear by telephone if you have sufficient justification for not being able to attend. Therefore, even if you’re manoeuvring through the divorce process alone, a clear and established pathway exists.
Overcoming Challenges When Spouse’s Location Is Unknown
One of the many challenges that may arise during divorce proceedings is when your spouse’s location is unknown. In such cases, you’re required to make reasonable efforts to locate your spouse before you can proceed with the divorce. These attempts must be documented in an Affidavit.
If your efforts to locate your spouse are unsuccessful, you can apply for substituted service, a method of serving the documents approved by the Federal Circuit and Family Court. If the court is satisfied with your attempts to locate your partner and deems it suitable to proceed without their involvement, permission may be granted for the divorce to continue.
Thus, even amidst seeming obstructions, viable options exist to reach the conclusion of your divorce journey.
Handling Children and Financial Matters in Divorce
In the stormy seas of divorce, the court’s compass always points towards the welfare of the children. The court aims to guarantee their ongoing care and support, considering their best interests and the proposed arrangements most beneficial for them. Thus, although the marriage may be dissolving, child welfare invariably remains a priority.
Financial matters, like property settlements, also need to be finalised within 12 months of the divorce order. This timeframe ensures that all monetary issues, including property settlement, are tied up neatly, allowing both parties to move forward unencumbered. Therefore, notwithstanding the emotional upheaval of a divorce, practical aspects like children’s welfare and financial settlements are always addressed.
Validity of Overseas Divorces in Australia
Even if your marriage journey began overseas, Australia can still offer a peaceful harbour for your divorce. Overseas divorces can be recognised in Australia if they fulfil jurisdictional and legal criteria, and adhere to Australian law. This recognition ensures that your overseas marriage, and its subsequent breakdown, is given due weight in the Australian legal system.
However, it’s important to note that not all overseas divorces may be recognised in Australia under certain situations. The acknowledgement of your overseas divorce in Australia essentially depends on your compliance with both jurisdictional and legal requirements. Thus, despite your marriage journey crossing continents, its conclusion can still be addressed under Australian law.
Seeking Professional Legal Assistance
Seeking professional legal assistance when divorcing after an overseas marriage is one of the best things you can do. Divorce lawyers and family law legal professionals can provide advice tailored to your unique situation, ensuring you’re equipped to make informed decisions.
Legal advice can offer numerous advantages, such as you starting the divorce process knowing exactly where you stand. A family law professional can also tailor the legal advice to your specific unique circumstances.
Remember, while general information can provide a broad understanding of the process, it can never replace personalised advice.
Work With the Family Law Divorce Experts at Clarity Lawyers
At Clarity Lawyers, we specialise in managing the complexities of divorces where marriages occurred overseas. Our expertise of Australian family law ensures that we can provide you with accurate and up to date advice.
Regardless of where in Australia you are, or where your marriage began, our team is equipped to protect your rights and ensure your voice is heard. We offer tailored, compassionate legal support, blending respect for your international connections with your current life in Australia, guiding you smoothly through the divorce process.
If you’re looking for empathetic divorce lawyers that can find you an efficient resolution, you need Clarity Lawyers. Book a free, no obligation consultation by calling us on (02) 4058 4007 or booking online here.
Frequently Asked Questions
How do I get divorced in Australia if I married overseas?
To get divorced in Australia if you married overseas, you must complete an Application for Divorce and file it at the Federal Circuit and Family Court of Australia, along with a copy of your marriage certificate and an English translation with an affidavit.
Does Australia Recognise overseas divorces?
Yes, Australia will recognise a divorce if it has been effected in accordance with the laws of the other country.
Is overseas marriage Recognised in Australia?
Generally, overseas marriages are legally recognised in Australia as long as they are recognised in the country where the marriage took place, and would be considered legal in Australia. A marriage is not going to be recognised as legitimate in Australia if it did not adhere to the same rules as Australia. For example, if a person married someone under the age of 18, the marriage would not be considered valid here in Australia. .
How long do you have to be separated before divorce in Australia?
To apply for a divorce in Australia, you must have been separated for at least 12 months.
How to get a divorce in Australia?
To get a divorce in Australia, you can eFile an application online using the Commonwealth Courts Portal. You can either prepare the application yourself or seek legal advice.