Property

When dealing with international family law matters in relation to property proceedings, there are two fundamental questions that require consideration:

1. Which court has jurisdiction?

2. Which court is the most appropriate forum?

Enforcement of a property settlement order


The Family Court of Australia and the Federal Magistrates Court may make orders in relation to property situated abroad in an overseas jurisdiction. However, a property settlement order made by the Family Court of Australia is not automatically recognised and enforceable in an international jurisdiction. Consequently, difficulties may be experienced in enforcing the property settlement orders overseas and this remains a constant problem for the courts.

The Family Court can make orders in absence of a party, but these can only be enforced against assets within Australia.

Disclosure


In property settlement proceedings, the court has frequently held that the parties are obliged to make full and frank disclosure of their financial affairs. Consequently, there is an obligation on the parties to disclose all items of “property” owned by them, including assets held overseas.

This commonly requires disclosure of the following documents:

1. A schedule of assets, income and liabilities;
2. A list of documents relevant to the dispute in the possession or control of that party; and
3. A copy of any document identified by the other party from the list of documents.

Full disclosure will assist the court in making a just and equitable order. A failure to provide the trial judge with a basis upon which to make findings about the value of the asset pool will render any consequent orders vulnerable on appeal.

Registration of a property settlement order and reciprocating jurisdiction


It is acknowledged that Australia is a signatory to reciprocal judgments recognition treaties with other countries.

However, there is a problem in respect of the reciprocal enforcement of matrimonial property orders in international jurisdictions. This is because the Family Law Act 1975 (Cth) only makes reference to recpirocating jurisdictions in regards to overseas maintenance orders and agreements.

Property settlement orders are not reciprocally enforceable between the United Kingdom and foreign jurisdictions, because where a property proceedings concerns immoveable property, the court of the country where the land is situated maintains exclusive jurisdiction. However, if the property settlement order can be categorised as maintenance (as noted above) then international recognition and subsequent enforcement may follow.

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