24 Apr How To Register Overseas Court Orders
Since his admission as a Solicitor, Harpreet has obtained excellent outcomes for his clients in Family Law matters and has appeared in both the Family Court and the Federal Circuit Court for a wide range of matters. Harpreet has completed a Bachelor of Laws and a Bachelor of Commerce (Accounting).
It is quite common for couples to get married overseas and to initiate divorce proceedings overseas. If this applies to you, you might find yourself in Australia wondering how to register overseas court orders.
The process is different depending on the type of orders in question. The Family Court in Australia may require different information or proof to register your overseas court orders.
Maybe you got married and divorced overseas, and then came to Australia. Perhaps you got married in Australia and divorced your spouse in another country. Either way, it is important your divorce is recognised in Australia.
As Australian law does not permit polygamous marriage, if your overseas divorce is not valid in Australia, you may not be able to remarry here.
The first thing to look at is whether the divorce was effected according to the laws of the other country. If the divorce is not valid in the first place, then it cannot be seen as valid in Australia.
The next factors to consider are whether one or both parties were citizens of or ordinarily resident in the country in which the divorce took place. The divorce will most likely still be recognised if only one of the parties was a citizen of or was ordinarily resident in the other country during the divorce.
Depending on the circumstances, it may be relevant that the parties to the divorce last lived together in the other country.
Lastly, Australia will recognise an overseas divorce if both people were afforded natural justice. This means that they both knew about the divorce application, that they were able to respond to it, and that they could participate in the hearing of the divorce application.
Each of the factors that make a foreign divorce valid in Australia mirrors the laws for a valid divorce here:
- At least one person in the couple must be an Australian citizen, regard Australia as their home and intend to live here indefinitely; or
- At least one person in the couple must ordinarily be resident in Australia at the time of the divorce application and for the 12 months beforehand
- If only one person is applying for a divorce, they must serve the divorce application on their spouse to give them the opportunity to respond
Additionally, the couple must have been married for at least two years and separated for at least 12 months before they are eligible for divorce.
The same rules apply to couples who married overseas and wish to divorce in Australia, although they will need to file a translation of their marriage certificate if it is not in English.
Overseas Parenting Orders
If you are wondering how to register overseas court orders, the orders that affect your children may be of particular importance.
There is a process to register overseas parenting orders in Australia.
First of all, overseas court orders relating to a child can only be registered in Australia if there is reason to be believe that one of the following people is in Australia:
- The child
- One of the child’s parents
- Another person who has rights relating to the child under a court order
Australia has agreements with a select list of countries that allow for court orders to be registered here so that they are enforceable in Australia.
These countries are listed in Schedule 1A of the Family Law Regulations 1984.
The method for registering court orders made in one of these countries is set out in Regulation 23 of the Family Law Regulations 1984.
To register overseas court orders under Regulation 23, you need to send a request to the International Family Law Section with three certified copies of the parenting order, along with a certificate from an officer of the court (or another authority in the country in which the order was made) stating that the order is enforceable in that country or jurisdiction at the date of the certificate.
If the parenting order was not made in one of the countries of parts of countries listed in Schedule 1A of the Family Law Regulations 1984, it may be necessary to obtain new parenting orders in Australia.
If both parties are in agreement about making the overseas parenting order valid in Australia, they can make an application for consent orders. Otherwise, they can apply to the court for parenting orders.
Child Support When A Child Or Parent Lives Overseas
In Australia, child support is managed by the Department of Human Services (DHS). Child support is still payable when one parent lives overseas or when the child lives overseas.
The process of receiving child support payments from someone outside Australia can be quite complicated and may take a long time. However, DHS can assist with Australian child support assessments, making payments and receiving payments.
The Department of Human Services can also assist with registering overseas court orders, agreements and assessments about child maintenance that were made in a reciprocating jurisdiction. The list of reciprocating jurisdictions can be found on the DHS website.
A maintenance order, agreement or assessment is also known as a maintenance liability. When it is registered with DHS, the department can collect and transfer child support payments.
To register the maintenance liability in Australia, DHS will need a copy of the overseas court order, agreement or assessment that includes an amount of periodic child support.
If you live outside of Australia (in a reciprocating jurisdiction) and wish to apply to receive child support payments from someone in Australia, you should do this through the maintenance authority in your country.
There is an International application for child support assessment form for paying or receiving parents living outside of Australia in a reciprocating jurisdiction.
Parents living in different countries can also self-manage their child support if both are in agreement about who will pay, how much will be paid, how the payments will be made and how often the child support payments will be.