Can you get divorced in Australia if you were married overseas?
Our country is full of successful immigrant stories, of people who have braved much hardship in their journey to Australia to secure safety and better opportunities for children. After time, it is unsurprising that the new environment and culture shock can impact on the marriage and result in a breakdown. Can you get divorced in Australia if you were married overseas? This overarching question very often comes with another: whether an overseas marriage needs to be registered in Australia to be able to get divorced.
There is no need to register an overseas marriage in Australia. For that marriage to be considered valid in Australia, it simply must be proven that the marriage was in accordance with the law of the country in which it occurred. What this means simply, is that clients need to ensure that they have their original Marriage Certificate. If your marriage certificate is not in English, you need to upload an English translation of the marriage certificate, together with an affidavit translation of marriage certificate from a certified translator.
Secondly, parties to an overseas marriage, or either of them, can pursue an Application for Divorce in Australia on the basis that the following grounds are satisfied:
- Either party to the marriage is an Australian citizen, domiciled in Australia or is ordinarily resident in Australia and has been so for one year immediately preceding the filing of the Application for Divorce; and
- The parties are separated and have lived separately and apart for a continuous period of not less than 12 months prior to the filing of the Application for Divorce.
If either of the parties are entitled to pursue an Application for Divorce and/or financial proceedings in more than one country, it is important that careful consideration be given to the potential consequences that may flow from the decision to initiate proceedings in one jurisdiction over the other. Once a Court proceeding is commenced in one country, it is generally accepted that a proceeding may not be pursued in a different country if the issues for determination in the second proceedings are the same as the first. If one jurisdiction is held to be a clearly inappropriate forum for the determination of matrimonial matters, a party will likely be restrained from pursuing any application or court proceeding in that jurisdiction.
Selecting the jurisdiction that offers a client a more favourable outcome is important and requires careful consideration of the competing jurisdictions as well as the circumstances of the marriage and how the parties’ assets are held. Specialist advice as to how such an outcome can be achieved must be sought and obtained in a timely way to ensure that prompt and decisive action may be taken.