The recent high profile dispute over the residency of a couple divorcing has more than a few dual citizens undergoing divorce worried. Australia has relatively egalitarian divorce laws in that it only considers and divides matrimonial property accrued during the course of the relationship, especially in childless marriages. If you are unsure under which conditions you can apply for a divorce in Australia then keep reading.
An Australian marriage, where both parties reside in Australia
If the marriage was performed in Australia and both parties reside in Australia either as citizens or simply permanent residents, then the divorce can be carried out by Australian courts. This can also be the case if the marriage was performed overseas (for example with a destination wedding), but the normal residency of both parties is in Australia.
An Australian marriage where one party now resides overseas
If following your separation one party has headed overseas, the Australian courts will usually still deal with the case if you were resident in Australia for your marriage. This is not affected by one party moving during your 12-month period of separation.
An Australian marriage of dual citizens who resided in another country, or split residency
If the marital property accrued during the marriage is primarily in Australia, in some cases an Australian court may hear the divorce. However, if the couple has not been primarily resident in Australia for the last 12 months of their marriage, then the divorce will be referred back to the the country that they have been primarily resident in, particularly if this is where the majority of the marital assets have been accumulated.
The courts will also look at proof of residency, including evidence of a permanent home and shared experiences with family and friends in Australia. The trickiest legal situation tends to be when one spouse has spent more time in Australia than the other, for example if one spouse returned to their home country to care for elderly parents. In this case the court generally looks for evidence of intention to return to Australia, such as return air flights and whether substantial amounts of personal property remain in Australia.
An overseas marriage of two Australian citizens, who reside overseas
If two Australian citizens marry overseas, the Australian court will refer the divorce back to the territory where the couple have resided.
Divorces involving multiple jurisdictions can be complicated, so you should get advice from an experienced family lawyer.Share