In this post covid world of remote work and living/ working overseas, it is important that you are aware of the jurisdictional requirements/thresholds that apply to you if you have separated from your spouse or de facto partner and you wish to proceed with:
- Obtaining a divorce (if you are married); or
- Commencing property proceedings to finalise the division of assets and liabilities; or
- Commencing parenting proceedings in order for the Court to determine the care arrangements for children; or
- Or entering into a financial agreement, either before, during, or after a marriage or a de facto relationship,
as these requirements may affect whether you are able to take the above steps or not.
Obtaining a divorce
In accordance with section 39 of the Family Law Act 1975 (Cth), if you are married and have separated, in order to be able to file for divorce in Australia, on the date the divorce application is filed in court, either person to the marriage must either
- be an Australian citizen; or
- be domiciled in Australia; or
- ordinarily resident in Australia and have been present in Australia for one year immediately prior to the filing of the divorce application.
Generally speaking, ”domiciled “means the country you intend to indefinitely make your home. “Ordinarily resident” means there is an element of permanence i.e. you regularly live in the country.
So therefore, if you are living overseas, but you or your spouse is an Australian citizen or your spouse lives in Australia, you can file for divorce in Australia. However of course we recommend you obtain independent legal advice as to whether it is in your interests to obtain a divorce order in Australia or instead overseas, if possible, before you take any steps to obtain a divorce.
Commencing property proceedings – married couples
As per section 39 of the Family Law Act 1975 (Cth), to commence Property proceedings in Australia, you or your ex-spouse must be:
- An Australian citizen; or
- Ordinarily resident in Australia; or
- Present in Australia on the day the application is filed in court.
Therefore, if you are living overseas but wish to apply in Australia for a Property settlement, you can file an application in Australia if you are an Australian citizen or if your ex-spouse is an Australian citizen or if your ex- spouse lives in Australia or if you are in Australia on the day you file proceedings. However of course we recommend you obtain independent legal advice from a family lawyer as to whether it is in your interests to commence property proceedings in Australia or instead overseas, if applicable, before you take any steps to institute Property proceedings.
Commencing property proceedings – de facto couples
There are additional jurisdictional requirements for de facto couples to be able to commence Property proceedings in Australia. As per section 90 SK of the Family Law Act 1975 (Cth), in order to make an order in relation to Property for de facto couples, the Court must be satisfied that either or both of the parties to the de facto relationship were 'ordinarily resident' in Australia when the application was made and that either:
- Both parties to the relationship were ordinarily resident in Australia during at least a 1/3 of the de facto relationship; or
- The Applicant made substantial contributions in relation to the de facto relationship in one or more states or territories in Australia at the application time; or that
- Alternatively, you and your ex-partner were ordinarily resident in Australia when the relationship broke down.
If you wish to seek a declaration as to the existence of a de facto relationship or duration from the Court, it must be established that one or both of the parties to the de facto relationship were ordinarily resident in Australia when the primary proceedings commenced as per section 90 RG of the Family Law Act 1975 (Cth).
However of course we recommend you obtain independent legal advice as to whether it is in your interests to commence Property proceedings in Australia or instead overseas, if applicable, before you take any steps to institute Property proceedings.
Commencing parenting proceedings
Based on section 69 E of the Family Law Act 1975 (Cth), in order to initiate parenting proceedings in Australia, one of the following requirements must be met :
(a) the child is present in Australia on the day the application is filed in court; or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the day the application is filed in court; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the day the application is filed in court; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the day the application is filed in court.
Financial agreements for married couples and de facto couples
There are no jurisdictional requirements for married couples to enter into financial agreements in Australia either before, during or after marriage and divorce. Any party to a marriage may enter into a Financial Agreement in Australia, however of course it is important that you obtain independent legal advice as to whether you require a financial agreement in Australia and if it is binding on overseas assets if applicable, amongst other such matters.
However in relation to de facto couples, in order for a de facto couple to enter into a financial agreement in Australia either before, during or after the de facto relationship, both parties must be ordinarily resident in Australia when they make the agreement. Therefore, if you are now living overseas, you will not be able to enter into a financial agreement. See section 90 UA of the Family Law Act 1975 (Cth) for further information on this.
