In Australia, an international divorce happens if one of the parties comes from a jurisdiction outside of Australia or one or both parties are living overseas as expatriates when the decision to divorce occurs.
What happens in an international divorce?
Australia’s “no-fault” divorce laws mean that obtaining an international divorce is quite straightforward and just requires paperwork to be filed from whichever jurisdiction you are living in.
Complications may arise however in relation to child custody arrangements.
Since 1975, Australia has had a ‘no fault’ divorce system and it is quite straightforward to obtain a divorce in Australia. All you have to do is prove to the courts that you and your spouse have been living apart for a period of twelve months and that the marriage has irretrievably broken down.
There are “fault elements” however in relation to child custody and property settlement issues and these involve demonstrating earning capacity and who brought what to the marriage in relation to the property and the roles of each party in raising the children.
International divorce can be a highly stressful experience particularly if there are concerns that one of the parties can take children from one jurisdiction to another without consequences.
However, the Hague Convention does not provide blanket protection preventing child abduction. Our article, on international child abduction “Proposed Changes to International Child Abduction Australia” considered success rates for parents trying to get abducted children returned to Australia. Over the period 2015 to 2016, of the 92 applications under the Hague Convention, only 63 were successful. That said, we discuss the operation of this legal instrument in more detail below.
Child abduction and the Hague Convention in Australia
The Hague Convention is a multilateral treaty that came into force in Australia in 1987 and there are now 95 signatories.
What this means is that if your former partner takes your children to another jurisdiction (which is one of the 95 signatories), you will be able to invoke the Hague Convention to secure the prompt return of children wrongfully removed or retained and it is designed to protect custody rights of both parties. The parent who was left behind in Australia could apply to the central authority of the child’s habitual residence and in Australia this would be a unit within the Attorney-General’s Department.
If your partner takes your child to a jurisdiction that is not a signatory to the Hague Convention, trying to recover abducted children is much more complicated. Your first move is to begin custody proceedings in the state or country where the child has been taken. There is also the possibility of extradition treaties.
Regardless of whether your child has been taken to a Hague Convention country or otherwise, the process of seeking legal recovery will be expensive and lengthy and can potentially take years. In this respect, prevention is better than cure. You really need to do everything in your power to prevent a former partner from taking children out of Australia – even for a short holiday – as the example below will illustrate.
What happens in an international divorce – when it goes bad?
In April 2016, Brisbane mother Sally Faulkner made international headlines when she and an Australian film crew from Channel Nine’s Sixty Minutes traveled to Lebanon in an attempt to recover Faulkner’s two children, Lahela and Noah.
In May 2015, Faulkner’s ex-husband Ali Elamine took the children to Lebanon for what was to be a brief family holiday. Several days later he Skypes Sally Faulkner advising her that plans have changed and that the children, Lahela and Noah, will not be returning to Australia.
Over the next 10 months, Ms Faulkner is unable to contact her children even on Skype (with the father saying the Skype calls upset them). Faulkner then sets up a Facebook page to raise funds and applies for sole custody in the courts. She investigates child recovery options which will cost up to $150,000.
Eventually, Ms Faulkner’s case gains momentum and Channel Nine’s Sixty Minutes decide to travel with Faulkner to Beirut, Lebanon with a news crew and abduction specialists to attempt to recover the children.
In what becomes a botched recovery operation ending up with Sixty Minutes reporter, Tara Brown and Ms Faulkner in detention in Lebanon and the children back in the custody of their father, Ms Faulkner reluctantly agrees to give full custody to ex-husband Elamine in return for her’s and Brown’s release from a Beirut jail.
Lebanon is not a signatory to the Hague Convention and even had it been, given that Mr Elamine had permission from Faulkner to leave Australia with the two children for a “short holiday”, the Hague Convention would only have become relevant once it was apparent that the children had been abducted by their father and had left Australian shores.
That said, invoking the Hague Convention and getting them returned would have been no easy feat.
Ultimately Ms Faulkner returned to Brisbane and is now presumably living there with her second husband and child from that relationship. She wrote a book about her experiences and it is unclear whether she has been able to have any ongoing contact with her children who, by now, must almost be in their teens. Faulkner is unable to return to Lebanon as she still faces kidnapping charges there with a potential sentence of more than three years should she return to that jurisdiction.
Whether this story had played out very differently if the Hague Convention could have been used, remains to be seen. Legal frameworks often deliver imperfect solutions, regardless of their intentions. As international marriages and partnerships increase, it is increasingly likely that instances of international parental child abduction will continue to rise.
So the above story illustrates just how badly an international divorce can be when children are involved and particularly with countries situated thousands of miles from each other and where there is no useful legal recourse, such as the Hague Convention, to produce a satisfactory remedy for all parties.
Regardless of your situation, however, you should always do your own due diligence and ensure that you engage suitable and competent legal representation if you are about to leave a marriage that crosses borders.
The Australian Family Law Act which is quite straightforward and relatively easy to negotiate means that you can quickly formalize a no-fault divorce but you must always check what the requirements are in the jurisdiction where your former partner originates from or now resides.
Should you choose to initiate your divorce from another jurisdiction, you must always research what the legal requirements and methodology are around those processes and know that obtaining a divorce in a jurisdiction outside of Australia may not produce the desired result which is beneficial for all parties involved.
In the Faulkner/Elamine case, both children indicated initially that they wanted to live with their mother but this preference may have changed after being with their father, for now, more than six years.
If you want more information about how Australian Courts make decisions on custody or access based on children’s preferences you should also read our article, “Does a child have a say in custody cases?”