Married Overseas, Divorce in Australia: A Complete Guide 2023
Getting a divorce can be a challenging and emotional process, and if you were married overseas, you may have the added stress of not knowing if you can end the marriage in Australia. Understanding the essential steps involved in a divorce can help you to gain clarity during this difficult time.
In this article, we will guide you through the necessary steps to get divorced in Australia if you were married abroad and ensure a clear and straightforward path to legal separation.
Am I considered legally married in Australia if I married overseas?
In Australia, if you married overseas, your marriage is generally recognised as valid as long as it was valid in the country where the marriage took place. However, there are certain circumstances where a foreign marriage may not be recognised in Australia.
Here are some examples:
- If you or your former partner were already married to someone else at the time of the foreign marriage, your second marriage may be considered invalid in Australia.
- If you or your former partner were underage according to Australian law at the time of the foreign marriage (below 18 years old).
- If the marriage ceremony did not meet the legal requirements of the country where it took place
While your marriage may be legally recognised, it does not automatically mean that you can immediately apply for a divorce in Australia. You must meet certain criteria and satisfy the jurisdictional requirements of Australian family law to start the divorce proceedings.
How to get a divorce in Australia if married overseas
To get divorced in Australia when you married overseas, you need to meet certain requirements and follow the divorce process outlined in the Australian Family Law Act.
Here are the key requirements:
a. Either you or your former partner is an Australian citizen.
b. Either you or your former partner regards Australia as your permanent home and intends to live in Australia indefinitely.
c. Either you or your former partner has lived in Australia for at least 12 months before you apply for a divorce.
Other Requirements for Getting Divorced in Australia if Married Overseas
You must provide a copy of your marriage certificate as proof of your marriage. If your marriage certificate is not in English, you must provide an authorised translation along with the original document.
You must demonstrate that your marriage has irretrievably broken down, which is typically established by a period of separation.
In Australia, the requirement is that you and your former partner have lived separately for at least 12 months before you apply for a divorce. It is possible to be separated while still living under the same roof, but you need to provide evidence to support that separation has occurred.
You must confirm that there is no reasonable likelihood of reconciliation between you and your former partner. This means that you have made genuine efforts to reconcile but have been unsuccessful.
Once these requirements are met, you can file an Application for Divorce with the Family Law Courts. If the court is satisfied with the application, a divorce order will be granted, officially ending your marriage.
No-fault divorce in Australia
To obtain a divorce order, you do not have to prove the fault or wrongdoing of a party.
In Australia, the only ground for divorce is the irretrievable breakdown of the marriage, which is demonstrated by a period of separation of at least 12 months. This means that neither party needs to prove fault, such as adultery or domestic violence, to obtain a divorce.
This approach to divorce is similar to the laws in many other countries that have adopted a no-fault divorce system. There are some countries, however, that still require specific grounds or reasons for divorce, such as adultery, abandonment, or cruelty.
In those countries, the parties may need to provide evidence or prove fault to obtain a divorce.
The Divorce Process in Australia for People Married Overseas
Here’s a simplified overview of the process that you may go through if you’re married overseas and want to get divorced in Australia.
1. Gathering the documents
You must obtain your marriage certificate and any relevant documents related to your marriage, separation, and children. As we mentioned earlier, if the marriage certificate is not in English, it will need to be translated.
2. Divorce application
Fill out the divorce application form with all necessary information about yourself, your former partner, your marriage, and any children.
3. Lodge the Application
Submit the completed divorce application form to the Federal Circuit and Family Law Court of Australia, either online or in person, and pay the required filing fee. You can access up-to-date filing fees here.
4. Serve the Application
Serve a copy of the filed divorce application on your former partner, following the specific rules and guidelines for service. This step is only required if you’re making a sole application for divorce – which we will explain in more detail below.
5. Wait for a Response
Your former partner has a specified timeframe to respond or contest the divorce. If there is no response, an uncontested divorce may proceed.
6. Divorce Hearing
If there are issues to resolve or your former partner contests the making of a divorce order, a court hearing may be necessary. Otherwise, a court hearing is not ordinarily required.
7. Divorce Order
If all requirements are met, the court will grant a divorce order, officially ending your marriage. Once made, an order becomes final after one month and one day at which time the court issues the sealed order.
Joint application vs sole application in divorce
There are two ways you can apply for a divorce: sole and joint application. Here’s how they differ from each other.
A joint application for divorce is filed when both you and your spouse agree to the divorce and are willing to cooperate throughout the process. This means that both parties work together to complete and sign the Application for Divorce form. It is a joint declaration stating that you both consent to the divorce.
In a joint application, both parties are considered joint applicants, and both need to sign the application form. This option is generally more straightforward and can often lead to a faster and smoother divorce process as there is no requirement of service.
A sole application for divorce is filed when only one spouse wishes to initiate the divorce. In this case, you will be the sole applicant, and your spouse will be the respondent. You will need to complete the Application for Divorce form on your own, without your spouse’s signature.
A sole application is appropriate when there is a breakdown in the relationship, and both parties are not in agreement or are unable to cooperate. It is also used when your spouse cannot be located or refuses to participate in the divorce process.
A sole application can also occur even when both parties agree to get divorced. In this case, the divorce papers will still need to be served to the party that did not apply for divorce.
What if I don’t know the location of my former spouse?
If you do not know the location of your partner, there are steps you can take to proceed with the divorce process.
You must demonstrate to the court that you have made reasonable efforts to locate your spouse. This typically involves attempts to contact them through various means such as phone calls, emails, letters, or mutual acquaintances. These attempts must be then recorded in an Affidavit, explained below.
Don’t forget to keep a record of your attempts to locate your spouse, including any responses or lack thereof.
Notice of Divorce
Once you have made reasonable efforts to locate your spouse without success, you can seek the court’s permission to proceed with the divorce by serving them with a Notice of Divorce by way of substituted service.
Substituted service means serving the documents through an alternative method approved by the Family Court. For example this may be through means such as by publication in a newspaper or through a social media platform.
Along with the Notice of Divorce, you will need to file an Affidavit outlining the steps you have taken to locate your spouse and why you believe they cannot be located. The Affidavit should provide as much information as possible about your attempts to find them and give notice of your application.
The Court will review your application, the supporting documents, and your Affidavit. If the Court is satisfied that you have made reasonable efforts to locate your partner and that it is appropriate to proceed without their participation, they may grant permission for the divorce to proceed.
If the Court is satisfied with your application and there are no other complications, a divorce order may be granted, effectively ending your marriage. The court will specify the method of service and the date from which the divorce becomes final.
What if there are children involved?
When addressing matters related to children, the Court prioritises their welfare and aims to ensure their ongoing care and support.
Both parents are encouraged to maintain a meaningful relationship with the children unless there are circumstances such as abuse or violence that warrant restrictions.
In divorce proceedings, you and your spouse will be required to outline to the Court what arrangements have been made for the care of the children.
The court will then assess whether there are proper arrangements for the care, welfare and development of the children. If the court is not satisfied that proper arrangements have been made for the care of children, the court could decline to make the order. This occurs rarely notwithstanding that it is common that a parent may contend that arrangements may not be proper or in the best interests. The Court does not hear parenting disputes in the course of making a divorce order. Parenting custody or access disputes require a separate application.
Do I need to divorce in Australia if married overseas?
While the specific laws and requirements can vary depending on your circumstances, here are a few reasons why getting a divorce in Australia may be necessary:
By obtaining a divorce in Australia, you ensure that your divorce is recognised and valid under Australian law. This can have implications for various legal matters, such as property division, financial settlements, and child custody arrangements.
In some cases, future legal requirements or benefits may depend on having an official divorce order from Australia. For example, if you wish to remarry in Australia or claim certain government benefits, having an Australian divorce can be important.
Is overseas divorce valid in Australia?
In Australia, the validity of an overseas divorce depends on several factors. Generally, if you obtained a divorce overseas according to the laws of that country, your divorce will be recognised as valid in Australia.
However, there are certain circumstances where an overseas divorce may not be recognized. Here are some key considerations:
The jurisdiction refers to the legal authority of a court to hear and decide a case. In the context of an overseas divorce, it means that the foreign court that granted the divorce must have had the appropriate legal authority over the matter. If the court had jurisdiction based on your or your former partner’s residency or domicile in that country, the Australian courts are more likely to recognise the divorce.
Each country has its own specific legal requirements for obtaining a divorce. For an overseas divorce to be recognised in Australia, it must have met the legal requirements of the country where it was granted. This typically includes fulfilling residency requirements, following the proper procedures, and obtaining a legally valid divorce order, decree or certificate.
Compliance with Australian Law
While an overseas divorce may be recognised in Australia, it must also comply with Australian law, particularly if there are related matters such as property division or financial settlements.
For example, if the overseas divorce did not address or adhere to Australian family law principles regarding property settlement, you may need to initiate separate legal proceedings in Australia to resolve those issues.
How we can help you
Even if you were married overseas, we can assist you with your divorce process.
The first step is to determine if your marriage is recognised under Australian law. If it is, we can proceed and apply for a divorce. We will guide you through the necessary paperwork and documentation, ensuring all legal requirements are met.
If your marriage is not recognised, we will explore alternative legal options to dissolve your relationship. Throughout the process, we will provide you with expert advice on your rights, obligations, and entitlements under Australian family law.
We will advocate for your interests during negotiations regarding property division, spousal maintenance, and child custody matters if applicable.
Ultimately, our goal is to help you navigate the divorce process efficiently and help you achieve a fair resolution, while prioritising your best interests and emotional well-being.
Contact us for an initial consultation.