We are regularly asked by clients who were married overseas, whether or not they can obtain a Divorce in Australia. And the good news is that you can - provided you can meet the legal requirements outlined in this post.
Before you can apply for a Divorce in Australia, you need to:
- Prove that you were married.
- Provide evidence that you have been separated for at least 12 months.
Proving that you were legally married in a different country is usually satisfied by the provision of a Marriage Certificate provided from another country.
Often the Marriage Certificate from a different country is in a different language. If that is the case, the Family Court of Australia requires that you provide a translation of the overseas Marriage Certificate. Translation services are available in Melbourne and can easily be obtained. There is usually a cost for such a translation.
You will also need to pay the current filing fee for a Divorce in Australia of $940 (this is a fee charged by the Court). The filing fee is the same if the marriage occurred in Australia of if it occurred overseas.
Upon provision of the translated Marriage Certificate and authentication from the translator that the translation is true and correct, the Family Court of Australia can give effect to a Divorce, even though you were married overseas.
What happens if my spouse now lives overseas?
If, for example, you were married in Scotland, and you are now residing in Australia, and your husband or wife continues to reside in Scotland, it is possible for you to make an application for a Divorce in Australia.
Pursuant to the Family Law Act, any Divorce Application must be served upon the other party (i.e., your husband or your wife) at least 28 days prior to the Divorce Hearing. The difference if you are applying for a Divorce from your spouse who may reside in Scotland, is that you are required to serve the Divorce Application upon the overseas party at least 42 days prior to the scheduled Divorce Hearing.
In certain jurisdictions, one party may need to apply for a Divorce in both countries, i.e. Australia and the other country for the Divorce to take effect in both countries.
Recently our firm was involved with an overseas marriage and a request by one of the parties for the marriage to be dissolved (Divorce). Even though proceedings had been issued in India, it was deemed appropriate for the Australian Court to grant a Divorce. In that case however the party would have also been required to apply for an obtain a Divorce in India to bring about a dissolution of marriage in both countries.
In that particular case, the wife objected to the husband’s Divorce proceeding in Australia. The matter was brought before a Judge of the Family Court and the Judge declared that it was appropriate for the Divorce to be declared in Australia.
Seek expert advice
If you wish to apply for a Divorce to a marriage legally made overseas, it is best to discuss this matter with your Family Lawyer well before your proposed Application so that issues as to service and any required translation of the Marriage Certificate can be completed prior to your Application.
Remember, it is an offence in Australia (Bigamy) to marry another person whilst you remain married. The offence of bigamy can carry a jail term.