International family law on divorce, child custody & support, and property settlement

For some—perhaps most—their connections to other countries will rarely become important legal issues. However, things can get quite complicated for dual citizens looking to divorce. Any divorcing couple knows that the ins and outs of court proceedings can become drawn out, stressful, and time-consuming. International family law is even more complex.

If you or your spouse have a reasonable connection to more than one country, you may be able to choose the jurisdiction in which you file for divorce. The rules for eligibility to apply for divorce will vary according to the country. This choice can significantly affect everything from asset division to child custody arrangements.

In Australia, eligibility to file for divorce includes meeting residency requirements. You must either regard Australia as your home and intend to live indefinitely, be an Australian citizen, or have lived in Australia for the last 12 months.

Understanding where to file can influence outcomes significantly due to differing laws on property division, child custody, and spousal support across countries. This knowledge is crucial for navigating your options in international family law scenarios.

Overseas Divorce

Once a divorce has taken place in an overseas jurisdiction, the question remains as to whether this divorce is recognised under Australian family law.

Overseas divorces are generally recognised in Australia.

If, at the date of the divorce proceedings, one or both parties had sufficient connection to the foreign jurisdiction, Australian family law will recognise the overseas divorce. Sufficient connection includes if they are national of that country or resided in that country for one year prior to the proceedings.

However, an overseas divorce may not be recognised under Australian family law if a party to the marriage was denied natural justice. An example of this would be if they were not notified of the divorce hearing.

In a similar way, overseas marriages are also generally recognised in Australia.

A marriage that took place overseas will be considered valid in Australia if:

• It is recognised as a valid marriage according to the laws of the country in which it took place
• Both parties were of marriageable age according to Australian law
• Both parties consented to the marriage
• The parties are not closely related, in accordance with Australian law

Also read:Facing the Hidden Betrayal: A Closer Look at Financial Infidelity

International Child Abduction

Australia takes child abduction incredibly seriously. The Family Law Act 1975 makes it clear that both parents share equal responsibility for their children, regardless of whether they are married or separated. This means no parent can remove a child from Australia without the consent of the other parent or a court order. If they do, they're breaching the law, and there are potential consequences.

What Happens When a Non-Custodial Parent Abducts a Child?

When a non-custodial parent takes a child overseas without permission, it is a violation of the other parent's rights and the child's well-being. In Australia, this can have serious legal ramifications.

• Criminal Charges: While international parental child abduction isn't a crime in Australia, it can become one if the non-custodial parent violates a court order.
• Family Law Watchlist: A court order can place the child on the Family Law Watchlist, which alerts authorities to prevent the child from leaving Australia.
• Recovery Orders: The courts can issue recovery orders, compelling the return of the child to Australia. This works best if the country where the child is taken is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

Australia is a signatory to the Hague Convention, an international treaty that aims to ensure the prompt return of children who have been wrongfully removed or retained in another country. If your child is taken to a country that is also a signatory, this treaty provides a legal framework for their return.

Overseas Property Settlement

Property settlement is often the most challenging aspect of an international divorce. The questions abound: Which country's laws apply? How do you value assets in different jurisdictions? What happens if your ex-spouse hides assets overseas?

Dividing Assets Across Continents

Australia's family law system recognises the importance of fair property division, even when assets are scattered across the globe. Here's what you need to know:

• Jurisdiction: The first step is determining which country's court has the authority to make decisions about your property. This is often where you and your ex-spouse usually live or have the closest connection.
• Asset Disclosure: Full and frank financial disclosure is crucial, regardless of where assets are located. This means declaring all property, bank accounts, investments, and businesses, both in Australia and overseas.
• Valuation: Assets in different countries may need to be valued by local experts familiar with the relevant market conditions.
• Enforcement: If your ex-spouse refuses to comply with a court order for property settlement, there are international agreements and mechanisms that can help enforce the decision in other countries.

Property Settlement and Non-Australian Spouses

If your ex-spouse isn't an Australian citizen or resident, it doesn't automatically disqualify Australian courts from handling property settlement. The key factor is the strength of your connection to Australia. Factors like the length of your marriage, where you lived together, and where your assets are located all play a role.

International Child Support

Every child has the right to financial support from both parents, regardless of where they reside. Australian law recognizes this right and extends its jurisdiction to cases where one or both parents live overseas.

How Does International Child Support Work?

The Child Support (Registration and Collection) Act 1988 allows Australia to register and enforce child support agreements or court orders from other countries. Similarly, Australian child support orders can be registered and enforced in many other countries through reciprocal agreements.

When a Non-Custodial Parent Lives Overseas

If the non-custodial parent lives overseas, establishing and enforcing a child support order requires careful navigation. Here's how it typically works:

1. Assessment: The Child Support Agency (CSA) or a court assesses the child support amount based on factors like the child's needs, the parents' incomes, and the care arrangements.
2. Registration: If the non-custodial parent lives in a reciprocating country, the Australian child support order can be registered there.
3. Enforcement: The reciprocating country's authorities will then enforce the order according to their own laws, collecting and transferring payments to the custodial parent in Australia.

Challenges and Solutions

While the system is designed to work smoothly, international child support cases can face obstacles such as:

• Non-reciprocating countries: If the non-custodial parent lives in a country that doesn't have a reciprocal agreement with Australia, enforcement becomes more complex.
• Hidden assets: Some parents might try to conceal their income or assets to avoid paying child support.
• Legal costs: Pursuing international child support can incur legal fees.

Having Issues Concerning International Family Law?

Facing complex family law matters that cross international borders? You don't have to go it alone. At Justice Family Lawyers, we understand your unique challenges and offer the expertise you need to achieve the best possible outcome.

Our team of seasoned  family lawyers specializes in all aspects of international family law, including divorce, child custody disputes, child support arrangements, and property settlements across borders. We provide personalized, compassionate support tailored to your specific situation.

Don't let distance complicate your family's future. Contact Justice Family Lawyers today for a confidential consultation and let us help you chart a clear path forward.

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.