International Divorce, International Family Lawyers. This article is an introduction to potential legal issues associated with separation and divorce between people living in different countries or where there are assets of a relationship located outside of Australia. This article does not consider children’s matters and the Hague Convention with regard to such. It is not intended as legal advice.
In our increasingly globalised society marriages and de facto relationships between people of different nationalities is more common than ever before. It is therefore that when these relationships break down there will be issues regarding where the divorce and property proceedings should take place and how assets in different countries will be treated. Additionally, with the increased use of pre and post marital agreements (such as the Australian “Binding Financial Agreement”) additional consideration needs to be given to the enforceability and effectiveness of such in different jurisdictions.
The Australian Courts determine how property of a relationship should be divided upon separation by using a number of steps. This involves:
1) Considering whether there should be any change to current ownership;
2) Ascertaining the net asset pool of the parties;
3) Assessing the financial and non-financial contributions of both parties;
4) Assessing various adjustment factors including the future needs of the parties; and
5) Considering the practical effect of the proposed property settlement and whether the settlement is just and equitable for both parties.
Different Courts will determine jurisdiction, how property should be disclosed by parties, valued, protected and distributed based on domestic and cross-jurisdictional laws.
There may be comparative strategic advantages of filing proceedings in certain jurisdictions. Consideration should also be given to each jurisdiction’s tax system and the cost of court proceedings. Obviously, the benefits of filing in any jurisdiction need to be considered within the entire context of the proceedings and execution of the orders made.
Caution needs to be exercised because of potential issues of enforceability of overseas Orders in Australia and visa versa. It is therefore imperative to get effective and accurate legal advice for your particular situation as early as possible.
Where the parties are Australian residents, matters are usually determined in the Australian Courts even if one or both of the parties may not be an Australian citizen. In many countries. jurisdiction to grant a Divorce Order and deal with property pursuant to that Order is usually determined by the “closest connection” test. This test means that the country in which the separated or divorced parties have the closest connection, e.g. where they usually live or where most of their assets are, will be the judicial system that determines their matter.
There are some fundamental differences between the relevant laws regarding relationship breakdown between Australia and European countries. These differences may be critical in determining where your matter would be better heard.
Where a European Court determines that there is a closer connection between the parties to the proceedings and another country, that Court may decide to apply the law of the foreign country. This can pose a number of issues largely stemming from the fact that the foreign law may not be applied as it would have been in the country in which it originated.
Australian law recognises de facto and same-sex couples and makes provision for the division of property when a relationship breaks down. European countries have comparatively fewer rights for de facto partners regarding the division of property after a relationship breakdown.
Australian Courts make orders for property which is binding on the parties and therefore it is possible for the property to be outside of Australia, however not all European countries will do this. Many European countries will only make property orders for the property located in their country.
Pre marriage agreements in some European countries may be considered binding without allowing the Court jurisdiction or authority to change the terms of the agreement even where it may be deemed unfair, where a party involved did not seek independent legal advice or where there was an unanticipated change in the circumstances of the parties again leading to a potential injustice or perceived lack of applicability of the agreement.
Many countries have weak powers to obtain financial disclosure from parties, which can be quite detrimental to the integrity of the proceedings. By comparison, Australian law makes parties compelled to provide full significant financial disclosure. Additionally, Australian judges dealing with these matters are well experienced with complex financial matters. This may not be the case in many other jurisdictions.
Additionally, some countries do not consider assets acquired before and after marriage as part of the asset pool when determining property distribution potentially leading to unfair results in the distribution between spouses.
The Courts in Australia do not routinely include spousal maintenance orders in property settlements as one of the objectives of the Court in granting orders for property settlement is to finalise matters. Therefore the property allocation will typically be adjusted to attempt to encompass future need rather than have orders with continuing effect. Where Australian courts do grant property maintenance it is usually only for a fixed period. Additionally, these orders can be varied or extended at a later date where the Court deems appropriate.
Some overseas countries will make spousal maintenance orders for a fixed period so when that period expires further maintenance cannot be sought. For example, in the United Kingdom large property matters have commonly been determined with long term spousal maintenance orders.
If you are currently separated or considering divorce and are concerned about the state of your assets and effectiveness of proceedings undertaken in Australia or overseas you should seek the advice of a specialist international family lawyer. It is important to seek accurate advice applicable to your personal situation from the start of your relationship breakdown to ensure that you are able to obtain the best possible outcome for your matter.
Things to consider with your family lawyer:
As Sydney’s leading International Family Law Firm we are able to provide advice on any questions you may have relating to international divorce and family law in New South Wales and internationally.