In certain circumstances a divorce granted overseas, even of a marriage performed in Australia, can be recognised here. In this article we look at the factors that the Court will take into account before recognising a foreign divorce.
Divorce in Australia
Briefly, in order for a married couple to get divorced in Australia they, or one of them, must prove that they have been married for at least two years, that they separated 12 months before filing the divorce application and have lived apart since then, and that there is no reasonable likelihood of the couple living together again. In addition, at least one of them must be an Australian citizen, regard Australia as their home and intend to live here indefinitely, or ordinarily live in Australia at the time of filing the divorce application as well as for the preceding 12 months.
If the couple have minor children, the Court must be satisfied that proper arrangements have been made for the children’s care, welfare and development, taking into account things such as their maintenance, education, living arrangements and time with both parents.
Australian law does not permit polygamous marriage. So, if a married person wishes to remarry in Australia, he or she must first be divorced, having received a final divorce order from the Court.
Australian divorce orders become final one month and one day after the Court hears and grants the divorce.
But what if a person obtains a divorce in another country? In what circumstances will that divorce be recognised by Australian law so that those parties, or one of them, could remarry in Australia?
The first step in determining whether a foreign divorce will be recognised as valid in Australia is whether that foreign divorce was effected according to the law of that foreign country. If not, then the foreign divorce cannot be treated as valid in Australia.
Then the Court must look at whether the applicant for the foreign divorce, the respondent or both of the parties were domiciled or ordinarily resident in or nationals of that foreign country at the time the foreign divorce proceedings were commenced. The Australian Court is likely to recognise that the foreign divorce, if it is valid in the relevant overseas country and if the respondent to the divorce application was a national of or domiciled or ordinarily resident in that foreign country at the time the divorce application was started.
If those factors do not apply to the respondent, the foreign divorce could be recognised in Australia if the applicant for the foreign divorce was domiciled in the overseas country at the time he or she files for divorce, or if he or she was ordinarily resident in that country at the time of starting the divorce proceedings and had been ordinarily resident there for the previous 12 months, or was at that time a national of that country. In some circumstances it would also be relevant that the parties last lived together in that foreign country.
Finally, in order for a foreign divorce to be recognised as valid in Australia, the Australian Court must be satisfied that both parties were afforded natural justice. That is, were each of them made aware of the application and given an appropriate opportunity to respond to it and, if appropriate in that foreign country, to appear and be heard at the hearing of the divorce application?
What about the laws of a third country?
When an Australian Court recognises a foreign divorce as valid in Australia, either of the parties to that former marriage may then remarry in Australia (so long as they are not still married to someone else at that time). That is the case even if the foreign divorce would not be legal or recognised as valid in some third country.
Australian law does not permit polygamous marriage. Therefore, someone who has been previously married (whether in Australia or elsewhere) must first obtain a divorce (or divorces if there was more than one earlier marriage) before he or she can remarry in Australia.
Australian law will recognise foreign divorces as valid in certain circumstances, taking into account factors such as whether the foreign divorce was obtained in accordance with the laws of that overseas country, of which country the parties were each citizens at the time the divorce proceedings were started and in which country the parties were each living at that time.
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