Married Overseas? This is Your Step-by-Step Guide to Getting Divorced in Australia
Divorcing in Australia but married overseas? Here are the basics
Did you get married overseas and want to get a divorce in Australia? You may have been settled in Australia for some time and recently decided to get divorced from your spouse. But the requirements may be a little different than a regular divorce depending on your circumstances. Here are some of the basics to getting divorced in Australia. .
What are the requirements to getting divorced in Australia if you are married overseas?
Firstly, your marriage needs to be valid. In Australia, a marriage made overseas will be legally recognised if it was a valid marriage under the law of the place you were married. There are some exceptions to this. If you have circumstances where there is doubt about the validity of the marriage, you must seek expert evidence.
If you are married overseas, there are three ways you will be allowed to apply for divorce in the Family Court.
- Either you or your spouse must be an Australian citizen. For example, through birth or either of you have gotten an Australian citizenship.
- Either spouse needs to have lived in Australia for at least the immediate 12 months before applying for divorce.
- You see Australia as your home and you want to live in Australia for the indefinite future.
You will need documentation to prove any of these three requirements. This will mean an Australian citizenship certificate, birth certificate, proof of residency and so on.
What are the other requirements for divorce?
There are some things to consider before making your joint or sole application to the Court for divorce. You need to have been separated from your spouse for at least 12 months before filing for divorce.
If you have children under 18 years of age, you need to have made an agreement for the arrangement of their care. For example, a parenting plan or parenting order.
How does property settlement work in Australia?
Unlike The United States, where you settle your finances and property during your divorce proceedings, divorce and property settlement are two different processes in Australia.
In Australia, a divorce occurs when you receive a divorce order from the Court. It is simply the end of your marriage. It does not consider children or finances.
A property settlement is where you agree together or are ordered by the Family Court to divide your property, debts and super with your spouse.
The process in the Court is as follows
- Identifying and valuing the property pool
- Assessing contributions
- Making necessary adjustments
- Satisfying that the decision is just and equitable.
You don’t have to go through the Court. You may have a more flexible agreement through a Binding Financial Agreement or Consent Order.
We know that getting property settlements is complicated and it is best to sort it out before divorce. We can guide you through this process.
What are the requirements of your original marriage certificate?
You will need to file a copy of your marriage certificate when you apply for divorce. It needs to be in English. Otherwise, it needs to be translated by someone who is accredited. When you file the translated certificate, the accredited translator will need to have signed an affidavit which is a legal written statement that swears information to be true.
What if your spouse is living overseas?
To get divorced, you must serve your divorce application to your spouse 42 days before it is heard in Court.
There are some circumstances where your spouse is living overseas. Sometimes, you may not be able to locate them. In this instance, you can apply for:
- Substituted Service: to have the documents sent to a third party that can pass it on
- Dispensation of Service: you don’t have to serve the application at all because you have made your best reasonable attempt to locate the person but cannot
How can getting divorced impact your immigration status?
If you are on a visa, you need to notify the Department of Immigration and Citizenship (DIAC) when you separate or divorce as soon as possible.
If you get a divorce and have a permanent spouse visa, you are likely able to stay in Australia.
If you are on a temporary partner visa, you will need to give a reason to stay in Australia and still receive your permanent visa. You must respond to the DIAC within 28 days. The possible reasons you can stay include
- You or a family member has experienced family or domestic violence by your spouse
- You have children in Australia with your spouse
If the DIAC is not satisfied, you have 28 days to leave Australia.
How is Australian divorce different from other countries?
Divorce is different all over the world. For example:
- Countries such as Canada or America have an option for a “fault divorce” where you can end a marriage on grounds of adultery or cruelty. Australia does not consider fault and what caused a marriage breakdown.
- In countries like India, the process for divorce depends on religion, with a different governing legislation for religions such as Buddhism, Islam, and Christianity. In Australia, the same legislation applies to everyone.
- Other countries have different processes for child support and custody. For example, Singapore has court orders that are more set and specific, such as Sole Custody, Joint Custody, Hybrid and Split Custody Orders. Australia has a variety of child support and custody arrangements and agreements that can be quite flexible.
The law is very different in each country. As your Australian lawyers, we know that divorce is complicated and stressful. We tailor our services to guide you through each step. We can help you find the necessary evidence you need for your marriage and divorce – contact us today!