Jurisdictional Issues

When there is an "international" element to family law matters, the lawyer first asks "in which jurisdiction should the matter be determined?" and "what law applies?". In most cases where the parties are either resident or present in Australia, the jurisdiction and law to be applied is Australian. However, it is important to get very precise legal advice as to which jurisdiction and law applies. Family law is certainly not uniform throughout the world. There are very important differences which may need to be assessed for any particular matter.

Marriage

In most cases, Australian law will recognise as a valid (legal) marriage, marriages performed overseas in any country. Provided the ceremony or process conforms to the law of the place the marriage is celebrated, Australian law will recognise the marriage. The notable exceptions are:-

a.marriages of same sex couples;

b.bigamous or polygamous marriages;

c.marriages involving persons under the age of 18; and

d.marriage involving siblings, ancestors or descendants.

Divorce

Provided the applicant for divorce is in Australia at the time of the application, Australians courts will make orders for divorce. Parties can object to an order being made on jurisdictional grounds.

It is important to seek legal advice if you wish to oppose the jurisdiction of a divorce application.

Children

Australian courts can make parenting orders for children residing overseas provided the applicant is in Australia at the time of the application. However, if a child has a substantially closer connection to another jurisdiction, then Australian courts may decline to hear an application for parenting orders and require the parties to resolve their dispute in that other jurisdiction.

Property

As for children, Australian courts will determine property disputes, involving property outside Australia. Once again, however, if a resolution is more easily facilitated in another jurisdiction, then Australian courts may decline to hear the application. This may be the case if all property is overseas.

Enforcement

Australia is a signatory to reciprocal judgments recognition treaties with other countries. Other aspects of international law require other countries to apply and enforce orders made in Australia. However, it is advisable to seek legal advice regarding the enforceability of any Australian order overseas.

Overseas Order

Once an overseas family law order (relating to children) is registered in an Australian court, it is usually enforceable in Australia as if it was an Australian order. Generally speaking, Australian courts will not vary orders made overseas unless very good reasons exists for doing so. It follows that someone wishing to vary an overseas order registered in Australia needs to apply in the jurisdiction that first made the order.

Conflicts

Special international law exists to determine "conflicts of law". This could happen if a matter is being litigated in two jurisdictions at the same time. Or it might occur if two jurisdictions require the matter to be litigated in the "other" jurisdiction. In addition, the laws of certain countries connect marriage and divorce or divorce and property settlement, whereas in Australia these matters are determined separated. It is very important to seek legal advice if your family law matter might have an "international" element.

To find out more, please contact our Family Law team.