Commencing family law proceedings can be daunting — even more so if you are trying to understand the process whilst living overseas. If this applies to your situation and you have ties to Australia, it may be in your best interests to resolve your family law dispute through the Australian court system rather than the local court system of the country where you are living.
In this article, we provide a guide as to who can issue what types of family law proceedings under the Family Law Act, and the relationship factors required. Please note that this articles does not consider the applications of Western Australian legislation.
Divorce or dissolution of marriage
To be able to file for divorce in Australia, on the date the divorce application is filed in court, either person to the marriage must be either:
- an Australian citizen; or
- domiciled in Australia; or
- ordinarily resident in Australia and have been present in Australia for one year immediately prior to filing the divorce application.
Generally, "domiciled" means the country you intend to indefinitely make your home. "Ordinarily resident" requires some element of permanence, in that you would need to regularly live in the country. This means that if you are living overseas, but you or your spouse is an Australian citizen or your spouse lives in Australia, you can file for divorce in Australia.
Married couples: commencing property proceedings
To issue property proceedings in Australia, you or your ex-spouse must be:
- an Australian citizen; or
- ordinarily resident in Australia; or
- present in Australia on the day the application is filed in court.
Therefore, if you are applying for a property settlement, an order for spousal maintenance or a declaration, you can file an application as an Australian citizen if your spouse lives in Australia or if you are in Australia on the day you file proceedings.
De facto couples: commencing property proceedings
For a court to make an order in relation to property or spousal maintenance for a de facto couple, the court must be satisfied that either or both parties to the relationship were "ordinarily resident" in Australia (except Western Australia) when the application was made and either:
- (a) both parties to the relationship were ordinarily resident during at least a third of the relationship; or
- (b) the applicant made substantial contributions in relation to the relationship in one or more States or Territories in Australia at the application time.
Alternatively, if both you and your ex-partner were ordinarily resident in Australia when the relationship broke down, you may issue property proceedings.
For a declaration as to the existence of a de facto relationship, it must be established that one or both of the parties to the relationship were ordinarily resident in Australia when the primary proceedings commenced.
Financial agreements for married or de facto couples
There are no jurisdictional factual requirements for married couples to enter into financial agreements, either before, during, or after marriage and divorce has occurred. Any one party to a marriage may enter into a financial agreement in Australia.
For a de facto couple to make a financial agreement, the parties must be ordinarily resident in Australia when the agreement is made. As such, if you were in a de facto relationship and are now living outside Australia, you will not be able to enter into a financial agreement.
Parenting matters in Australia
To institute parenting proceedings in Australia, one of the following requirements must be met:
- (a) the child is present in Australia on the day the application is filed in court, or if an application is not filed in court, the day the application is made; or
- (b) the child is an Australian citizen or is ordinarily resident in Australia on the day the application is filed; or
- (c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the day the application is filed; or
- (d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the day the application is filed.
If none of these apply, the court still has discretion to exercise jurisdiction and may allow parenting proceedings to commence despite not complying with the list of factors above.
Child maintenance arrangements
While Child Support can be arranged via the Child Support Agency, there are strict jurisdictional requirements to be eligible to pay or be paid Child Support. If one parent lives in Australia, a child support assessment from the Child Support Agency may be possible. Alternatively, a Child Support agreement made in Australia may be able to be registered in overseas jurisdictions.
However, if neither parent lives in Australia, separate to Child Support, the Family Court has jurisdiction to make orders in relation to Child Maintenance orders. There are no jurisdictional factual requirements to be established for one of these orders.
Where to from here?
If you are an Australian citizen or you have other ties to Australia, you may wish to consider issuing family law proceedings in Australia rather than where you are currently living. As set out in this article, if you are an Australian citizen or your ex-spouse continues to live in Australia, it is likely that you will be legally entitled to do so.