Going through a divorce can be emotionally challenging, and even more so if you got married overseas as there can be legal variables to consider.
Although you cannot register your overseas marriage in Australia, it will generally be recognised if it was a valid marriage under the local law at the time and would have been considered valid if the marriage had been conducted in Australia. It is important to note that even if you are married overseas, an Application for Divorce can be made in Australia on the condition that you or your spouse:
- are an Australia citizen (by birth, descent, or grant of an Australia citizenship); or
- regard Australia as your home and intend to live indefinitely in Australia; or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
What if I have been living with my spouse since separation?
Prior to applying for divorce, you must consider whether you and your spouse have lived together during part or all of the required separation period of 12 months. If you were separated under one roof, you will need to support your divorce application with an affidavit. This affidavit will need to prove that there has been a change in the relationship, gradual or sudden, demonstrating that you and your spouse have separated. A supporting affidavit will also need to be filed by an independent person; such as, a family member, friend or neighbour.
What if my marriage certificate is not in English?
A copy of your marriage certificate must be provided when you file your Application for Divorce. If your marriage certificate is not in English, an English translation of your marriage certificate must also be filed alongside an Affidavit of Translation of Marriage Certificate completed by the translator.
What if I do not have a copy of my marriage certificate?
If you do not have a copy of your marriage certificate, you should try to obtain a copy through contacting the relevant embassy in Australia or the civil registry of the country where the marriage took place. If you are unsuccessful in doing so, you will be required to file an affidavit explaining why a copy of your marriage certificate is unable to be provided to the Court.
What if my spouse lives overseas?
You may find it difficult to serve the Application for Divorce on your spouse if they are still living overseas. If you are unable to locate your spouse after taking all reasonable steps to do so, you may apply to the court for substituted service or dispensation of service. A substituted service will involve serving the relevant documents to a third person who will then pass on the documents to your spouse. If the Court makes an order for the dispensation of service, however, you will not be required to serve the documents on your spouse.
What we can do to help?
It is important that you note that a Divorce Order in Australia only recognises that your marriage has ended. You will still need to consider any property matters, financial support or parenting arrangements that need to be resolved between you and your spouse. Proceedings in relation to property settlement or spousal maintenance must be initiated within 12 months of your Divorce Order coming into effect. If this time limit is not complied with, you will need to seek permission from the court to initiate proceedings and you may be prevented from doing so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.