The answer depends on how the spousal maintenance arose; what country the spousal maintenance arose in and the country of residence of the Applicant to have the liability registered.
If you have a Court Order for spousal maintenance made overseas and you are wondering what you need to do about enforcing the Order now you live in Australia – this article is for you…..
1. What is an Overseas Maintenance Liability?
An Overseas Maintenance Liability means a liability that arises under:
- a maintenance order made by a judicial authority of a reciprocating jurisdiction; or
- a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction; or
- a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction.
Or more simply put, an Overseas Maintenance Liability includes a court order or a registered agreement for spousal maintenance, made in a foreign country that is a reciprocating jurisdiction.
In order to be registerable in Australia, the Order must meet the definition of a Registerable Overseas Maintenance Liability, which is limited to periodic maintenance.
2. What is a Reciprocating Jurisdiction?
In our increasingly globalised world, there are many international treaties to which various countries are signatories. Included are international treaties relating to maintenance obligations arising out of family relationships, parentage or marriage.
Upon becoming a signatory to such an international treaty, obligations are conferred on the assenting country to recognise and enforce certain laws of other signatory countries, including, in this case, spousal maintenance.
Those countries (or part thereof) in respect of which Australia recognises such international maintenance arrangements are called Reciprocating Jurisdictions. The list of countries qualifying as Reciprocating Jurisdictions is set out in the Schedule 2 of the Child Support (Registration and Collection) Regulations 1988.
3. Where was the Order made?
In Australia, the Child Support Agency, which is a federal government agency and the central authority in Australia for matters relating to international maintenance obligations, allows for the registration and enforcement of spousal maintenance liabilities arising out of orders made by courts of reciprocating jurisdictions pursuant to the Child Support (Registration and Collection) Act 1988 (“CSRC Act”).
So, if your order for maintenance was made in a court of a reciprocating jurisdiction, it may well be able to be enforced in Australia – read on!
4. Are you in Australia?
If you reside in Australia, you can apply to the Child Support Registrar directly, to register an Overseas Maintenance Liability so long as the other party resides in a reciprocating jurisdiction.
5. Not in Australia? There are still options!
If you do not reside in Australia but you do reside in a reciprocating jurisdiction, you may still be able to seek enforcement of your Overseas Maintenance Liability in Australia by applying to have the liability registered in Australia via the central authority in your country. In such circumstances the other party must reside in Australia.
It will depend on the central authority of the country in which you reside as to the exact process to make such application to the Australian Child Support Agency on your behalf.
6. Married or De Facto? Does it matter?
Curiously, under the relevant legislation, overseas maintenance liabilities arising between parties to a marriage and parties to a de facto relationship are dealt with differently.
The CSRC Act defines a Registerable Overseas Maintenance Liability as including overseas maintenance liabilities arising between parties to a marriage for the payment of periodic maintenance but not in relation to parties to a de facto relationship.
However, payees of an Overseas Maintenance Liability arising out of a de facto relationship may still be able to have the liability registered with the Child Support Agency upon application pursuant to a different section of the legislation which allows for payees of an Overseas Maintenance Liability that is NOT a Registerable Overseas Maintenance Liability.
In any matter, the Child Support Registrar can refuse to register an Overseas Maintenance Liability if satisfied that doing so would be inconsistent with the international maintenance arrangement upon which the payee relies.
So the bottom line is you are party to a periodic spousal maintenance order or registered agreement for periodic spousal maintenance, arising out of marriage and made in a reciprocal jurisdiction and at least one of the parties are resident in Australia and the other resident in a reciprocating jurisdiction, you may well be able to register you overseas spousal maintenance in Australia for enforcement.