Married Overseas? This is How to Get Divorced in Australia

Posted on August 4, 2023 by Louise Cassar

Unified Lawyers Louise Cassar

Louise Cassar

Author
Louise has over 25 years’ experience in law and has specialised solely in family law since 2015. Louise brings a high level of experience to her practice of family law, through her knowledge, study and practice of commercial law, her work as a solicitor advocate and as a mother of two (now adult) children. Louise is passionate about the law and says that whilst it sounds ‘schmaltzy’, as a family lawyer she has a genuine desire to help families at difficult and emotional time in their lives.

Key Takeaways:

    • To get divorced in Australia after being married overseas, you or your spouse must meet specific requirements, such as being an Australian citizen or resident or having lived in Australia for at least 12 months before filing for divorce.

    • The divorce process in Australia is generally simpler compared to some other countries, as it operates on a no-fault system, where fault for the breakdown of the relationship does not need to be proven.

    • There are two types of divorce applications in Australia: joint application and sole application. The choice depends on factors such as mutual agreement, the location of your spouse, and whether they consent to the divorce.

    • Divorces obtained overseas are likely to be recognised as valid in Australia if they were obtained in accordance with the divorce system of the relevant country and meet certain conditions, such as one party being a resident or citizen of the country where the divorce was granted.

In this article, we’re going to discuss the concept of being married overseas divorce and getting divorced in Australia and what you need to know about the divorce process. We will also discuss the differences between the Australian divorce system as compared to other countries and ensure that by the time you’re done with this article, you know your next steps.

Is an overseas marriage valid in Australia?

Before we think about divorce in Australia if you were married overseas, we need to know whether you’re considered married in Australia if your marriage took place in another country.

Generally speaking, in most instances, if your marriage occurred legally and in adherence with the marriage laws of the country you were married in, your overseas marriage will be considered valid in Australia.

There are some circumstances where an international marriage, though legal in the country you were married in, is not considered legal in Australia. For example:

  • If you were forced into the marriage; or
  • If either party to the marriage were under the legal age of Australia (18 years) at the time of the marriage; or
  • If either party to the marriage were already legally married to someone else. Even if polygamy is legal in the country the marriage took place, it’s possible that your marriage will not be considered valid in Australia as polygamy is illegal.

So, if I was legally married overseas can I get divorced in Australia?

While in most instances if you’re married overseas your marriage will be considered legal in Australia, to be able to get divorced in Australia, you will need to meet additional requirements.

  • You or your spouse must meet at least one of the below requirements for divorce:
  • You or your spouse are an Australian citizen by birth or descent; or
  • You or your spouse are an Australian citizen by grant of Australian citizenship; or
  • You ordinarily live in Australia and have for 12 months before filing for divorce; or
  • You regard Australia as your home and intend to live indefinitely in Australia.

If you meet one of these requirements you will be required to provide additional information to prove this. For example, if you are an Australian citizen you will need to file proof of your citizenship and if you’re not a citizen but you have been living in Australia for at least 12 months before applying for divorce, you will need to provide evidence of this.

It’s a good idea to obtain legal advice to ensure that you’re eligible to get a divorce in Australia and that you have the required information.

How do you get divorced in Australia?

The actual process of divorce is the legal ending of the marriage and doesn’t take into consideration other matters, like parenting and property settlements. These matters are handled separately from a divorce, and we will discuss them in further detail shortly.

The application for divorce is relatively straightforward and can be applied online using the Application for Divorce through the Commonwealth Courts Portal. Note that there are fees for filing for divorce and you can find those filing fees here.

If you can meet the requirements for divorce that we listed above, there are still a few other considerations and requirements that must be met, including:

  • Satisfying a separation period; and
  • Providing the relevant information.

Separation Period

In Australia, before you can apply for a divorce you must first have been separated from your spouse for at least 12 months and one day. The separation period is to help establish that the relationship has irretrievably broken down and that there is no chance of reconciliation.

Separation is different for everyone and commonly former couples live apart during this time. However, in some instances, a former couple will remain living together during the separation period. You can learn more about separation under the same roof here.

Relevant information

Earlier we mentioned that you will need to provide proof of you’re citizenship or residency or proof that you’ve been living in the country for at least 12 months prior to applying for a divorce. Another important document you will need to be able to apply for divorce in Australia is a valid marriage certificate.

Providing your marriage certificate is required for all divorce applications, not just for those where you were married overseas.

It’s extremely important to note that if your marriage certificate is not in English, it must be translated and you will need to provide an affidavit from an approved translator to prove that they are certified to translate the marriage certificate and that the marriage certificate is valid. The translator needs to be a NAATI-accredited translator and you can find more information about their services here.

If you do not have your marriage certificate you can apply to the relevant authorities in the country where your marriage took place to obtain a copy. If you’re still unable to provide a valid marriage certificate you may be able to apply for divorce but you will need to provide an affidavit explaining why you could not provide the marriage certificate, as well as details about the marriage too.

How is the divorce process in Australia different to other countries?

The divorce process in Australia has some similarities and some differences to the divorce processes of other countries. Overall though, the process is generally a lot simpler than it is in other countries and one of the main reasons for this is because the Australian divorce system is a no-fault system.

A no-fault divorce system is where neither spouse needs to prove that one of the spouses was at fault for the breakdown of the relationship, instead, you just need to prove that there has been a breakdown of the relationship and reconciliation is not possible. The 12-month separation period is meant to help in proving this. In some other countries, fault must be proven to be able to apply for divorce.

In addition to the different kinds of systems, the process of getting a divorce is simply the legal recognition that the marriage is over, but it does not mean that property and parenting matters are complete as well.

Other countries, like the United States, include property division as part of the divorce process, however, in Australia, these matters along with parenting matters can be decided prior to a divorce application or afterwards as well.

When you end a marriage in Australia, if there are children of the marriage who are under the age of 18, you must make parenting arrangements that are considered satisfactory, and these arrangements can be made between the parents privately and recorded in a parenting plan, or you can apply to the court for parenting orders or to approve consent orders.

For property settlements, you can either make a decision together as to how you will divide your property and assets or you can apply to the court to have the decisions made for you. You can work out a property settlement prior to divorce or after, however, time limits do apply.

If you have any questions about parenting matters, property settlements or divorce proceedings, we recommend that you seek legal advice. Sorting out these matters can be complex and there are many factors to consider so having the support of someone who understands family law processes in Australia can make it significantly easier to work through.

Divorce application types

If you meet the requirements for divorce and you are able to provide all relevant information for the application, you will also need to make a decision on the type of divorce application you will make.

In Australia, you have two options when applying for a divorce. You can either apply through a joint application or a sole application.

What is a joint application for divorce?

This is where both parties to the marriage file for divorce together. It involves both parties completing the application and is usually a smoother process as you won’t be required to attend a court hearing or serve divorce papers to the other spouse.

What is a sole application for divorce?

The Australian divorce system also allows for one party to apply for a divorce without the other party’s consent to file the application. However, as part of the application for divorce, the spouse that applied for the divorce will be required to serve the application to their spouse.

The divorce papers need to be served to the other party at least 28 days prior to the divorce hearing or if the other party lives overseas, it needs to be served at least 42 days before the divorce hearing.

If you’re planning to serve the divorce application in person, this must be done by someone other than you, such as a family member or friend. When the application papers are served to the other party, they will need to sign an acknowledgement of service.

When you apply for divorce through a sole application, you will need to attend the divorce hearing if there are children of the marriage under the age of 18 years.

cartoon image of a couple heading towards divorce.

Which option is right for you?

The right option for you will be dependent on the unique factors of your situation, but some factors that may influence the application type that you choose are:

  • If you and your spouse both agree to apply for a divorce. In this case, a joint application is a good option.
  • If your spouse does not want to get divorced, a sole application is likely to be the best option.
  • If your spouse is living overseas or you’re unable to locate them, a sole application is the best option.

If you need more information about divorce applications and your options, you can always discuss your situation with a family divorce lawyer.

What do I do if I want a divorce but my spouse lives overseas?

If you meet the requirements for divorce and your spouse is living overseas, it’s still possible to apply for a divorce in Australia. If your spouse agrees to, you can still apply through a joint application.

If your spouse is unaware that you want to apply for divorce or you don’t think they will agree to apply for divorce together, you can still apply through a sole application for divorce and you will need to serve the divorce papers to them within 42 days before the divorce hearing.

The divorce papers can be sent to them through the post, however, if you’re unable to locate your spouse or you’re unsure of where they currently live and thus unable to serve them the documents, you may be able to apply to the court for an order of substituted service or dispensation of service.

Substituted service is where the documents may be served to a third party who will make your ex-spouse aware of them, while dispensation of serve is where you can avoid serving the documents as long as you have made all reasonable attempts to serve them.

Is a divorce in Australia legally recognised in other countries?

Yes, in most circumstances, if a divorce was legally obtained in accordance with the family law system of Australia, the divorce will be recognised and considered valid in most foreign countries.

If I get divorced overseas, is that recognised in Australia?

An international divorce, foreign divorce, or a divorce obtained in a different country is likely to be recognised in Australia as a valid divorce if it was obtained in adherence to the divorce system of the relevant country. There are some conditions that should be met in order for the divorce to be recognised in Australia, for example, one party to the divorce should be a resident or citizen of the country where the divorce has taken place.

Another potential influencing factor is whether the parties to the divorce were afforded natural justice and proper arrangements were made.

If you have been divorced overseas and want to know whether you are considered to be divorced in Australia, you can always speak to a family and divorce lawyer to find out more information.

How we can help

The end of a relationship isn’t easy, even if both parties think that it is the right step forward. While the actual process of applying for a divorce is relatively simple in Australia, everything else that comes with ending a relationship can be complicated.

Property settlements and child custody are likely to be matters you need to sort out and we’re here to help you with any kind of divorce and family law proceedings.

Our family and divorce lawyers understand the divorce process and everything that comes with it, so we can work with you to find the best outcome possible for your situation. Don’t struggle through a divorce alone, work with Australia’s leading divorce lawyers.

You can get in touch with us by calling 1300 667 461 or booking a free consultation online using the button below. We have offices based in Brisbane, Sydney and Melbourne and we can help people Australia-wide.

Unified Lawyers Louise Cassar

Louise Cassar

Author
Louise has over 25 years’ experience in law and has specialised solely in family law since 2015. Louise brings a high level of experience to her practice of family law, through her knowledge, study and practice of commercial law, her work as a solicitor advocate and as a mother of two (now adult) children. Louise is passionate about the law and says that whilst it sounds ‘schmaltzy’, as a family lawyer she has a genuine desire to help families at difficult and emotional time in their lives.

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