13 Sep Australian Couple Separating Overseas
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
With the world becoming more interconnected and globalised, it is not uncommon for a family to relocate and live overseas.
This can be because of factors such as employment, spending time closer to family, or simply wishing to experience something different.
Whilst couples in a committed relationship rarely think about splitting with their partner, it is very important for parties who move from Australia to live in another country to understand the local family law process and consider all the possibilities if they happen to separate whilst living together overseas.
Tips to consider if you are thinking of moving temporarily to another country with your family
- Try to retain as many ties to Australia as possible. This can include keeping a bank account in Australia with funds, real estate, or in contact with your employer. Furthermore, consider returning regularly to Australia to visit family and friends.
- Depending on the Visa and work authorisation laws of the host country, it may be difficult to find a job. However, returning to Australia may also present new challenges because it may involve the loss of one’s children. Ensure you contact an experienced Immigration Lawyer to find out the impact of your status in the host country. This can inform difficult decisions you may have to make.
- Become familiar with the laws of the host country. This can make the divorce process less complex and decrease anxiety.
- Familiarise yourself with the local family law process and court systems. In some countries, ‘no-fault’ divorce may not exist, meaning that you may need to explain to a court why you would want a divorce.
- Consider how long your family intends to live overseas. If it is agreed between you and your partner that you and the children will return to Australia after a particular time, it might be helpful to put this in writing and sign it. This is not a guarantee that you can return with the children to Australia, but can serve as evidence if a dispute arises in the future in case of separation.
- Have a personal plan of what actions you may take if you and your partner happen to separate whilst living overseas. This can include returning to Australia with the children prior to informing your partner of the desire to separate. This can make it easier than if you were stuck overseas and unsure of your options.
Family law process will change in different jurisdictions
It’s important to note that every jurisdiction may have different laws and regulations around separation, divorce, children and property. In most countries, different states will have different laws, for example in the USA, the family law process between the states of New York and Mississippi are vastly different.
Be especially careful in countries like the Philippines. Every nation in the world allows its residents to divorce under some conditions except the Philippines (though Muslims in the Philippines have the right to divorce) and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce.
In Chile, you can not have a no-fault divorce. You will need to prove infidelity, abuse, or abandonment for a divorce to be granted.
Japan also has some strange divorce laws. The couple only has to sign, seal, and file a one-page form; they can be divorced without ever going to court. However, there is no provision for joint parental custody of children. Child support may be paid however visitation rights are generally not given to one parent. Japanese children often spend all of their time with one parent after a divorce.
Another strange aspect of Japanese family law is that women have to wait six months before remarrying. A woman must take her husband’s surname upon marriage, and it is a complicated family law process to restore her maiden name after a divorce.
Beyond the psychological pain of separation, the ‘abroad’ aspect adds legal, financial, family and social aspects that you must consider.
It is important to think about these factors before you uproot your life abroad with your partner or family.