If you were married overseas but now reside in Australia and wish to seek a divorce in Australia, you may question whether you are eligible or how to apply for a divorce. The bottom line is that you can still apply for a divorce in Australia if you fulfil the required criteria. Within this article, our experienced family and divorce lawyers delve into the steps involved in obtaining a divorce in Australia if your marriage was overseas.
Requirements and Documentation for Initiating a Divorce in Australia
To initiate the divorce process in Australia, you must fulfil specific criteria. Firstly, you and your ex-partner must have been separated for at least 12 months without any prospect of reconciliation. Additionally, meeting one of the following “citizenship” requirements is crucial: considering Australia as your permanent home, being an Australian resident, holding Australian citizenship by birth, descent, or grant, or having lived in Australia for the 12 months preceding the application filing.
Failure to meet these requirements disqualifies you from applying for a divorce in Australia. However, if you do qualify, there are various documents you can submit to the Federal Circuit and Family Court of Australia (FCFCOA) to provide the necessary evidence. For instance, obtaining a copy of your Movement Record from the Department of Human Affairs can demonstrate your 12-month residency in Australia prior to filing the application. Additionally, if you are an Australian citizen or permanent resident, you can submit supporting documents such as your Australian Citizenship Certificate, Australian passport, or proof of permanent residency like your green Medicare card.
What if my marriage certificate needs to be in English?
Suppose you were married overseas, and your marriage certificate is in another language other than English. In that case, you must translate it into English before you can file for a divorce application.
The person who translates the marriage certificate must be a certified translator. The FCFCOA recommends using NAATI (‘National Accreditation Authority for Translators and Interpreters’) to find a translator with the requisite qualifications. You can visit the NAATI website here to find and contact a suitable translator.
The translator who performs the certificate translation must also complete an Affidavit Translation of Marriage Certificate. The Affidavit is a brief, one-page document that can be downloaded (in PDF or Word version) directly from the FCFCOA website. A copy of the prescribed Affidavit Translation of Marriage Certificate form can be found here.
In preparing the Affidavit Translation of Marriage Certificate, the translator must:
- attach a copy of the original marriage certificate; and
- attach the translation of the marriage certificate; and
- set out their qualifications to translate.
The Affidavit must be sworn or affirmed before an authorised witness, either a Justice of the Peace or solicitor. Once these steps have been performed, you can file the Affidavit Translation of Marriage Certificate, along with your divorce application and other supporting documents (such as citizenship evidence), via the Commonwealth Courts Portal.
You can find further information concerning filing a joint divorce application on the FCFCOA website, which you can visit here.
Can you reverse or rescind a divorce order?
It is vital that you (and your former partner in cases of joint divorce) are sure there is no prospect of reconciliation before an application for divorce is filed with the Court. However, there are circumstances where parties to a marriage reconsider their decision to apply for a divorce, noting that the separation process is highly emotionally complex and confusing.
As such, there are legislative provisions that allow parties to make an application to rescind a divorce order after it has been made, provided the divorce order has yet to become final.
After a divorce order is made at a divorce hearing, it does not become final for one month and one day after that date. For example, if a divorce order is granted on 22 May 2023, it will become final on 23 June 2023.
Provided it is before the one-month and one-day deadline of the divorce order coming into effect, you can make an application seeking the divorce order be rescinded. Under the Family Law Act 1975 (“the Act”), either one or both parties can seek orders be made on the grounds:
An Application in a Proceeding will need to be filed seeking orders that the divorce order be rescinded pursuant to either section 57 or 58 of the Act. The Applicant/s will also need to prepare and file Affidavit/s to justify why the Court should reject the divorce order. This will involve explaining the circumstances of reconciliation or why there has been a miscarriage of justice. After these documents have been filed, a court hearing date will be scheduled. Depending on the circumstances, the hearing might occur in “chambers” (meaning that the parties do not need to attend the hearing), or the parties will need to participate in the hearing to provide the Court with further evidence.
Does Australia recognise an international divorce?
Australia will recognise an international divorce order, provided it meets the requirements set out in section 104 of the Family Law Act 1975 (Cth).
To summarise, Australia will recognise a divorce order made in another jurisdiction if the Respondent (the party that didn’t apply for the divorce) is a resident or citizen of the foreign jurisdiction country at the time of the divorce application.
The divorce will also be valid if the Applicant in the divorce proceedings is also a resident of the foreign country at the time of the divorce application and either:
- was the ordinary residence of the Application for at least 12 months immediately before the filing of the divorce application; or
- the foreign jurisdiction was the last place the parties cohabited (lived together) before separation.
Please note that applying for a divorce in another jurisdiction may have unintended consequences concerning property settlement and parenting matters (if applicable). If you apply for divorce in a foreign jurisdiction, the laws of that country may dictate how financial and parenting matters are dealt with. This may be entirely different to how the Australian jurisdiction and Courts would deal with the same and it could potentially have negative implications concerning the same.
Therefore, it is essential to obtain competent legal advice from a family lawyer before you decide on which jurisdiction to commence divorce proceedings in.
How Ramsden Family Law Can Assist with International Divorce
In navigating the complexities of international divorce, it is crucial to seek competent legal advice to make informed decisions regarding the jurisdiction in which to initiate divorce proceedings. Ramsden Family Law can provide the expertise and guidance you need during this challenging time. Our experienced team specialises in international divorce cases and can assist you in understanding the legal implications and options available to you.
Contact Ramsden Family Law today for comprehensive legal support tailored to your unique situation.