Did you get married overseas and are wondering if you can file for a divorce in Australia? The answer is an absolute yes. Under the Australian Marriage Act of 1961, an original or certified copy of a marriage certificate issued by a proficient authority in a foreign country is proof enough of the overseas marriage and grants the validity of the marriage in Australia.

However, the fact that you can file for a divorce in Australia even if you got married abroad does not necessarily guarantee your eligibility.

Eligibility for filing a divorce in Australia

For your divorce application to be considered valid in Australia, you must fulfill either of the following pre-conditions:

  • You or your spouse is an Australian citizen. This can be by descent, birth or grant.
  • You or your spouse typically live in Australia or have lived in Australia for at least the past immediate 12 months before applying for a divorce.
  • You or your spouse intend to live in Australia indefinitely because you regard it as your home.

If you or your spouse meets either one of the above pre-conditions, then you must also satisfy the necessary Australian Court conditions for granting a divorce. These include:

  • You and your spouse must have been separated for at least 12 months and 1 day.
  • The marriage must have irretrievably broken down.
  • If you and your spouse have children under the age of 18, the court must be satisfied that you have made proper arrangements for them.

The divorce application process

To file for a divorce, all you have to do is complete the interactive application for divorce accessible through the Federal Circuit Court of Australia and pay the filing fee. In the state of New South Wales, the filing of a divorce can be done by yourself or through a lawyer.

However, it is highly recommended to consult the services of a divorce lawyer because of the procedural issues that tend to arise. Some of these issues include:

 

  • If your marriage certificate is not in English

 

If your marriage certificate is not in English, you will be required to file it in court to be translated into English. The English translator must then file an affidavit confirming that they are qualified to translate, that they’ve done an accurate translation and that the attached copy is a true copy of the marriage certificate.

 

  • If your spouse is overseas and you can’t serve them the divorce application

 

If you have taken all reasonable and possible steps to serve your spouse with the divorce application to no success, you are expected to apply to the court for an order for substituted service or dispensation service. You will be required to complete the application as well as present an affidavit.

Other issues, such as being separated but living under the same roof will require addressing through an affidavit. All these particular circumstances that may arise during the divorce process are reasons why we advise seeking legal counsel for your divorce application.

To file for a divorce in the state of New South Wales if you were married overseas, contact us today.

 

Last updated August 1st, 2019 – Written by Jeremy Maspero.

Jeremy Maspero is a family law lawyer with a diverse range of experience and skills. With the experience you need and results you want, contact Jeremy today for a consultation to understand how he can help you on 02 8052 3322 or jeremy@masperolegal.com.au.

References

  • https://www.gotocourt.com.au/family-law/recognition-of-an-overseas-marriage/
  • https://www.gotocourt.com.au/family-law/how-to-obtain-a-divorce-if-married-overseas/
  • http://www.familycourt.gov.au/wps/wcm
  • https://justicefamilylawyers.com.au/family-law/divorce/how-to-get-a-divorce-in-australia-if-married-overseas/