International Family Law

Australia has high migration levels and an extremely mobile population. Separations therefore often raise international law problems. A spouse may wish to move to or from Australia – possibly with the children. Marital property may be located outside of Australia – or moved in or out of Australia. One or both spouses may be advantaged or disadvantaged by whether family law issues are resolved in or outside of Australia.

Early consideration of these issues may simplify negotiations and litigation. Listed below are common international family law issues that need to be considered – but the list is not exhaustive. You should obtain expert advice in respect of your specific circumstances.

  1. WHAT FOREIGN MARRIAGES ARE RECOGNISED IN AUSTRALIA?
    A foreign marriage that is recognised under the law of the place of the marriage will be recognised in Australia unless:

    • either party was at the time of the marriage already married under Australian law to another person;
    • either party was not of “marital age”. This means eighteen years in respect of persons domiciled in Australia, and sixteen years in respect of persons domiciled elsewhere;
    • if the parties were within personal relationships prohibited by Australian law;
    • if the marriage lacked consent or a party had mental incapacity to understand the ceremony. A party to an invalid marriage not recognised in Australia would not be able to make application under the Family Law Act for the division of property or spousal maintenance. They may have entitlements under the various De facto (Relationships) Acts of individual Australian states. A foreign marriage may allow a spouse to make an application to a foreign court even if one of those spouses resided in Australia.
  2. WHAT FOREIGN DIVORCES ARE RECOGNISED IN AUSTRALIA?
    An overseas divorce which complies with the law of an overseas jurisdiction is recognised in Australia provided that either party had a sufficient connection with the foreign country. For example, that one of the parties resided in the foreign country, or had domicile or nationality in the foreign country. A foreign divorce may be refused recognition in Australia if:

    • a party to the marriage was denied natural justice in respect of the hearing. That is, that they had not been provided due notice of the proceedings or had not been given the opportunity to be heard at the hearing;
    • recognition of the divorce would be contrary to Australian public policy.

    Tips: The place of the divorce may effect the choice of jurisdiction for resolving parenting and property matters. An Australian divorce may stop a party seeking property orders in other jurisdictions. Parties must bring an application for property settlement or spousal maintenance in Australia within twelve months of an Australian divorce. This time period does not apply however where the divorce has been granted outside of Australia.

  3. WHEN CAN THE AUSTRALIAN FAMILY COURT HEAR APPLICATIONS FOR PROPERTY SETTLEMENT OR SPOUSAL MAINTENANCE?
    Property and spousal maintenance applications may be made in the Australian Family Court if either party to the marriage is at the time of the application:

    • an Australian citizen; or
    • is ordinarily resident in Australia; or
    • is present in Australia.

    Note: The Australian Family Court may make orders in relation to property outside of Australia – although difficulties might be experienced in enforcing the orders. The Australian Family Court, however, cannot make “super splitting” orders dividing superannuation or pension interests held outside of Australia. A spouse’s entitlement to such interests however may be taken into account in determining a fair division of the other property.

    In some circumstances, the Australian Family Court may decline to exercise its jurisdiction to hear an application for property settlement or spousal maintenance. The Australian Family Court would need to be persuaded that it was a clearly inappropriate forum to hear the proceedings. This can be a difficult test to satisfy.

    By contrast, courts in some other countries may be persuaded not to exercise jurisdiction unless it is the most convenient forum.

  4. DE FACTO PARTNERS
    Property settlement and spousal maintenance between de facto partners is governed by different legislation in each Australian state. The relevant legislation in New South Wales is the Property (Relationships) Act. To make an application for property settlement or spousal maintenance under this Act, it is necessary that:

    • one or both spouses is resident in New South Wales on the day the application was made; and
    • either both parties were resident in New South Wales for a substantial period of the relationship or substantial financial, home-making or other contributions were made in New South Wales for one of the parties.
  5. WHEN WILL FOREIGN PRE-NUPTUAL AGREEMENTS BE RECOGNISED IN ANOTHER COUNTRY INCLUDING AUSTRALIA?
    Since 2000, the Australian Family Law Act has provided for married couples to enter into Binding Financial Agreements before or during the marriage defining how property and financial matters are to be resolved in the event of separation. Similarly, de facto partners are able to enter into Cohabitation Agreements under the laws of the Australian state. Many foreign countries have similar laws allowing parties to enter into what are commonly called “Pre-Nuptial Agreements”.There can be great difficulty in enforcing these types of agreements in other countries. If there is a possibility of a spouse having entitlements to make application for property or spousal maintenance in another country, the parties should consider whether they should enter into such agreements in a number of different countries. Alternatively, they should ensure that there is sufficient property and assets located in a country where the agreement is made to allow for each spouse to receive their due entitlement under the agreement.
  6. WHEN WILL THE AUSTRALIAN FAMILY COURT HEAR APPLICATIONS IN RESPECT OF CHILDREN?
    An application for parenting orders may be made in Australia if at the time of the application:

    • the child was present in Australia; or
    • the child was an Australian citizen or ordinarily resident in Australia; or
    • a parent of the child (or other party to the proceedings) is an Australian citizen, is ordinarily resident in Australia, or is present in Australia.

    An application can therefore be made to the Australian Family Court in respect of a child who is residing outside of Australia. In some circumstances, however, the Australian Family Court may decline to exercise its jurisdiction if it is contrary to the welfare of the child.

  7. CHILD ABDUCTION AND THE HAGUE CONVENTION
    Australia is a signatory to the Hague Convention on the International Abduction of Children. There are a large number of other countries which are signatories to this Convention including New Zealand, Canada, South Africa, the United States, the United Kingdom, and most European countries.The purpose of the Convention is to discourage child abduction and to encourage resolution of parenting disputes in “home” countries. If a child is removed from a Hague Convention country to another Hague Convention country by a parent, the other parent may make an application to the court in the foreign country seeking the return of the child. The court in the foreign country will generally not consider what is in the overall best interests of the child, or with which parent the child should reside in the long term. The foreign court will generally order the return of the child to the original country for the resolution of final parenting orders.The application by the parent seeking the return of the child is generally made by a Central Authority prescribed under the Convention.An application must be made within twelve months. It is therefore important to act quickly in the event of child abduction.If a child is removed to a non-Hague Convention country, it is necessary for the aggrieved parent to make an application for custody or residency to the court in the foreign country. Generally, the proceedings would take place in that foreign country.
  8. PREVENTING CHILD ABDUCTION
    It is generally preferable to avoid having to bring proceedings under the Hague Convention by preventing the removal of the child from Australia in the first place.Some practical steps to achieving this include:

    • Obtain parenting orders in Australia including an order restricting either parent removing the child from Australia along with an order for the child to be placed on the Australian Federal Police Airport Watch List.
    • Ensure that a copy of the order is registered with the Australian Federal Police and check its continuing registration from time-to-time – ideally, at least every six months.
    • Consider what countries can issue a passport for the child. The Australian Passport Office should not issue a passport for a child without both parents signing the application forms. To avoid applications being falsely signed, a parent may also lodge a form with the Australian Passport Office. Australian Family Court orders cannot be binding on embassies of foreign countries in respect of the issue of passports for children. The procedure of foreign embassies in issuing passports for children vary. Many embassies, however, would not issue a passport without both parties signing the application, and will voluntarily provide information about whether applications have been lodged for the issue of a passport.
    • Parents should think carefully before consenting to a separated spouse removing a child from Australia. They may wish to impose various restrictions on the removal of the child. At the very least, they should require copies of return plane tickets and detailed itineries including departure and return dates. A failure to return by the stated return date will trigger a Hague Convention application. A parent may require that the other parent provide some form of financial security – for example, deposit of funds in a bank account or mortgages over real property located in Australia. A parent should be particularly cautious before consenting to the removal of a child to a non-Hague Convention country. Of course, even if a parent consents to the removal of a child to a Hague Convention country, the child may be taken on to a non-Hague Convention country.
    • If a parent is unwilling to consent to the removal of a child from Australia – the other parent may wish to make an application to the Australian Family Court seeking permission from the court. Depending on the circumstances, the court may impose conditions on the removal of the child.
  9. CHILD SUPPORT
    The Australian Child Support Agency (“CSA”) can issue assessments of child support if:

    • the child is present in Australia, is an Australian citizen or ordinarily resident on the day of the application;
    • the liable parent is a resident of Australia on the day when the application is made; and
    • the applicant parent is a resident of Australia on that day.

    All of these criteria must be met for the CSA to have jurisdiction.

    The CSA however can issue assessments if the applicant or liable parent is in a foreign country with which Australia has reciprocal enforcement obligations.

    If there is no reciprocal enforcement agreement between Australia and the foreign country, a parent may still be able to seek child maintenance via an application to the Australian Family Court provided:

    • the child is present in Australia; or
    • the child is an Australian citizen or is ordinarily resident in Australia;
    • a parent of the child, or party to the proceedings, is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the day of the application being filed; or
    • it would be in accordance with a treaty or international agreement or the common law laws of private international law.

Australia has high migration levels and an extremely mobile population. Separations often raise international family law problems.

We are experienced in the complications of international family law.

Migration can be disruptive and disrupt relationships. We receive enquiries from migration lawyers and agents who are often a first source of family law information for separated couples.

We provide a summary of family law issues which may affect migrants.

 

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