Which Country Should I Finalise my Family Law Matter In?

  • My partner and I hold property overseas, which country should do our property settlement?
  • My former partner and I live in different countries, where do we commence family law proceedings?
  • Can parenting orders be recognised in different countries?

For couples and families who have spent time living in different countries, own properties overseas, or no longer live in the same country as one another, it can be confusing to work out the best jurisdiction to determine their family law matter.

This question can be very important because in Family Law there may be a need for final orders to be recognised or implemented overseas.  Further, given that each country may have different laws regarding family law matters, where proceedings are determined can have a significant impact on the outcome of the matter.

Whether or not the proceedings can be initiated in Australia, depends on the type of proceedings being sought, as the requirements vary.

In which country should I file for Divorce?

The requirements that need to be met to obtain an order for divorce are different across different countries.

In Australia all that is required is for the person filing for divorce to be:

  • An Australia citizen, or
  • Domiciled in Australia; or
  • An ordinary resident in Australia, having been so for one year immediately before the institution of the divorce proceedings.

In addition, the parties must have been separated for 12 months, must be able to show they had a valid marriage, that there are proper arrangements in place for any children and that service of the divorce application was affected on the other party in accordance with the Rules of the Court.

In which country should I seek orders for a property settlement?

Marriages

Section 31 and 39 of the Family Law Act 1975 (Cth) provide the Family Court with jurisdiction to hear and determine proceedings for matrimonial causes, which is defined in section 4 of the Act.  Some of the more common matrimonial cause proceedings include proceedings between parties to a marriage for a divorce order, with respect to the maintenance of one of the parties to the marriage, or proceedings with respect to the property of the parties of the marriage (or either of them) arising out of the martial relationship.

So Australian Courts have the ability to hear any proceedings meeting this definition, despite the country in which the parties were married (subject to the clearly inappropriate forum test discussed below).

De facto relationships

In relation to de facto relationships however, in Australia the geographical requirements of section 90SK(1) of the Family Law Act 1975 (Cth) need to be met which are as follows:

  • Either party was ordinarily a resident in a participating jurisdiction when the declaration or order was made; and
  • Either or both parties were ordinarily a resident in a participating jurisdiction during at least a third of the relationship or the applicant made substantial contributions in relation to the de facto relationship under section 90SM (4)(a) to (c) in one or more participating jurisdictions.
  • In the alternative, that the parties were ordinarily a resident in a participating jurisdiction as at the date the de facto relationship came to an end.

In which country should I commence parenting proceedings?

For proceedings relating to children the Family Law Act 1975 (Cth) requires the following requirements to be met for proceedings to be initiated in Australia in relation to children:

  • The child is present in Australia;
  • The child is an Australian citizen or ordinarily a resident in Australia;
  • A parent of the child is an Australian citizen, or ordinarily a resident in Australia or is present in Australia;
  • A party to the proceedings is an Australian citizen, is ordinarily a resident in Australia or is present in Australia; or
  • Where it is appropriate for the Court to exercise jurisdiction (according to a treaty, arrangement or the common law rules of private international law).

Northern Territory additional requirements

The Northern Territory adds a further requirement to parenting proceedings being commenced within its borders, and that is that at least one of the parties was ordinarily a resident in the Northern Territory at the time the proceedings were instituted.

Western Australia limitations

Western Australia is limited to hearing proceedings involving children located within Western Australia.

What happens if family law applications are made in different counties at the same time?

The clearly inappropriate form test

Where proceedings have been validly instituted in Australia and there are also existing or anticipated proceedings for the same purpose initiated in another country, the Australian courts apply the “clearly inappropriate form” test.

The Australian courts consider whether Australia or the other country would be the appropriate forum to conduct the proceedings. This usually requires consideration of the connection of the proceedings to the courts in both countries.  The Australian courts can dismiss or stay the proceedings if deemed to have been initiated in Australia, and Australia is considered to be the clearly inappropriate forum.

In previous cases, courts have found Australia to be a clearly inappropriate forum where the proceedings were considered “seriously and unfairly burdensome, prejudicial or damaging” to the other party causing “serious and unjustified trouble and harassment” (Henry v Henry [1996] HCA 51).

The High Court of Australia has also held that it is “vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue” and that this is relevant to the question as to whether the proceedings are oppressive or unfairly burdensome.  Accordingly, consideration of these views should be factored into the assessment, and such a situation avoided by a party who is considering commencing proceedings where there are already valid proceedings on foot in another country.

In determining the clearly inappropriate forum test, the Court considers multiple factors which can include the following:

  • If the matter involves parenting aspects, where the children are located and their potential involvement in the proceedings, including any need to travel;
  • The value of the assets held in each completing jurisdiction;
  • The level of the parties personal connection to either jurisdiction and whether they are respectively a resident of either jurisdiction;
  • The availability of expert witnesses in either jurisdiction and the costs associated with such expert evidence;
  • Whether either jurisdiction can provide a complete resolution of the matter;
  • Whether orders made in the other jurisdiction will be recognised in Australia.

The above is not however an exhaustive list and the court maintains discretion in determining the issue of forum.

It is up to the party who asserts that Australia is the clearly inappropriate forum to establish that this is the case.

An example of the application of the clearly inappropriate forum test can be seen in In the Marriage of Kennedy (1998) 23 Fam LR 105. In this case an application for property orders was made by the Wife in Australia, despite the fact that the parties had been involved in extensive litigation in relation to a property settlement in the United States where final orders had been made by the Superior Court of New Jersey. The Family Court of Australia stayed the Wife’s Application holding that Australia was clearly the inappropriate forum.

Having my orders recognised in different countries

As mentioned above, whether Family Law orders made overseas will be recognised in Australia is a factor taken into consideration when applying the clearly inappropriate forum test.

However, consideration of whether Australian or overseas orders will need to be enforced in other countries is an important factor for parties to turn their minds to.

Parenting Orders

Australia has arrangements with some countries to register parenting orders made overseas to make them capable of enforcement in Australia. A list of these countries is located in Schedule 1A of the Family Law Regulations 1984.

If parenting orders are unable to be registered in Australia, parties may need to obtain a new parenting order via the Australian courts. One way this can be achieved is for parties to enter into “mirror orders” by agreement, being orders in the same terms as made in another country by having ‘consent’ orders’ made through the Australian courts.  The Australian parenting orders can then be enforceable in Australia.

Property Orders

In relation to property orders, the situation is slightly different.  The Australian court’s power to adjust property interests under the Family Law Act 1975 (Cth) is an in personam power, meaning  the courts have the power to make orders against the parties personally, but not directly against the specific property in question (Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at p 78,389).

So the Australian courts can deal with overseas property by making orders binding on the parties and compelling them to deal with the property in a certain way to implement the orders as required.  This is provided that the Court is of the view that it can exercise jurisdiction and is satisfied that another jurisdiction would not be more appropriate to adjudicate the matter as discussed above.

One way to try to provide a mechanism for the enforcement of Australian orders relating to overseas property is to build into the orders themselves, provisions that motivate compliance or default clauses for non-compliance.  For example, requiring a person to deal with the overseas property in a certain manner, and causing the provision to that party of additional Australian based assets to be conditional on their compliance with the orders relating to the overseas property. Alternatively, parties could consider entering into mirror orders in the overseas country if available, to provide a mechanism for enforcement of the orders in that country.

Although this article can be used as a guide, it is important that parties seek legal advice when deciding which country to conduct their family law matter in, as each case will depend on its individual circumstances.  Making the wrong decision may have unfortunate ramifications for a filing party, including costs orders, and can affect the conduct of the matter.

If you would like further information surrounding issues of international family law or the enforcement of overseas orders, please do not hesitate to contact our family law team.

If you have any further queries in relation to the duty of disclosure and the avenues available to investigate the financial interests of your former partner, please do not hesitate to contact our family law team.

Vicki Kelly, Accredited Family Law Specialist, vkelly@mtpartners.com.au

Emma Shuttleworth, Accredited Family Law Specialist, eshuttleworth@mtpartners.com.au

Disclaimer:  This article is intended to provide general information only, and is not to be regarded as legal advice. Formal legal advice should be sought in relation to particular transactions or circumstances.

 

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