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.
Many Australians are well versed in international family law. Over six million Australians were born overseas and up to five million more were born in Australia but hold dual citizenship.
For some – perhaps most – their connections to other countries will rarely become important legal issues. For dual citizens looking to divorce, however, things can get quite complicated.
Any divorcing couple knows that the ins and outs of court proceedings can become drawn out, stressful and time consuming. International family law is even more complex.
International Family Law
If you or your spouse have a reasonable connection to more than one country, you may be able to choose the jurisdiction in which you file for divorce.
The rules for eligibility to apply for divorce will vary according to the country.
In Australia, for example, to be eligible for divorce you must first have been separated from your spouse for more than one year and one or both of you must either:
- Regard Australia as your home and intend to live here indefinitely;
- Be an Australian citizen by birth, descent or grant of citizenship; or
- Ordinarily live in Australia and have done so for 12 months prior to filing for divorce
If you have lived in another country for an extended period of time, if you are a citizen of another country or if you own property in another country, you may be eligible to divorce there.
Selecting the jurisdiction in which to apply for divorce is a crucial aspect of international family law.
There are many points to consider, such as the legal status of women, the expected waiting time until the divorce is finalised and the cost of proceedings.
If you are planning to live in another country, other than the one in which the divorce takes place, it is also important to consider aspects of the family law system such as:
- How the courts manage parenting disputes
- Whether the courts have the authority to issue orders that would prevent the transfer of assets to outside their jurisdiction
- Whether any orders made in the court are enforceable overseas.
In international family law, you must also be aware of the different requirements for filing a divorce application.
Australian divorce law is based on a no-fault system. This means that neither party must provide a reason for the divorce; the spouses instead need to have been separated for at least 12 months with no reasonable likelihood of their resuming a relationship.
Other countries do have a fault-based divorce system, in which a party must provide a ground for divorce. In the United Kingdom, for example, there are five accepted grounds for divorce. Included in these grounds is living apart by mutual consent for at least two years.
The first person to initiate divorce proceedings will determine the jurisdiction in which the divorce takes place, in the majority of cases.
In most cases, choosing the jurisdiction in which to divorce is no easy decision. It will depend on each couple’s individual circumstances and the opportunities available to them. It is best to obtain professional legal advice specific to your situation.
Are Overseas Divorces Recognised in Australia
Once a divorce has taken place in an overseas jurisdiction, the question remains as to whether this divorce is recognised under Australian family law.
Overseas divorces are generally recognised in Australia.
If, at the date of the divorce proceedings, one or both parties had sufficient connection to the foreign jurisdiction, Australian family law will recognise the overseas divorce. Sufficient connection includes if they are national of that country or resided in that country for one year prior to the proceedings.
However, an overseas divorce may not be recognised under Australian family law if a party to the marriage was denied natural justice. An example of this would be if they were not notified of the divorce hearing.
In a similar way, overseas marriages are also generally recognised in Australia.
A marriage that took place overseas will be considered valid in Australia if:
- It is recognised as a valid marriage according to the laws of the country in which it took place
- Both parties were of marriageable age according to Australian law
- Both parties consented to the marriage
- The parties are not closely related, in accordance with Australian law
Children And International Family Law
Issues in international family law, such as the country or jurisdiction of the divorce, can be exacerbated when there are children involved.
Initially, the parents may decide between themselves who the child lives and spends time with. If they make an application for parenting orders, the court will decide.
However, one of the key aspects of international family law concerning children is overseas travel and international parental child abduction.
In Australian family law, a person cannot take their child out of the country without the other parent’s consent (or the consent of the other person with parental responsibility). This means that if one parent withholds their consent to the child’s overseas travel, the travelling parent must apply to the court for a parenting order that would waive the consent requirement.
The same is true of children’s passport applications.
Usually, the application for a child’s passport must be signed by both parents or the people with parental responsibility. The court, however, has the authority to make an order in favour of obtaining the passport, with or without both parents’ consent.
If one parent does not wish their child to travel overseas, they can place the child’s name on the Family Law Watchlist, which would alert the Australian Federal Police if the other parent tried to take the child out of the country.
The Hague Convention
The Hague Convention is a multilateral agreement in international family law that helps resolve cases of international parental child abduction.
The Hague Convention is in force between Australian and over 80 other countries around the world.
If the other parent has taken your child to one of these countries, you can make an application under the Hague Convention to seek their return to Australia.
The convention itself is not used to resolve parenting disputes or to establish any fault on the part of a parent. Rather, it provides legal procedure by which parents can secure the child’s return to their home country.
The Hague Convention is also applicable in situations where a person’s former spouse is denying them access to their child in a foreign country.
Following divorce proceedings, some parents may live in a different country from their child. Access arrangements, such as visits, emails, phone calls and video calls, need to be made in circumstances where a parent does not live in the same country as their child.
Similar to situations of international parental child abduction, the Hague Convention provides a legal process by which a parent can seek access to their child overseas.
This works much the same way in reverse. If a parent in another country is being denied access to their child living in Australia, or if the other parent has taken the child to Australia without the first parent’s knowledge or consent, they can make an application under the Hague Convention.