International seperation - property around the world

With the ease of international travel – and Australia’s rich migrant past - more and more people live their lives across multiple continents. This can raise important questions when it comes to family law if a couple separate: what if the couple own property in Australia and in other countries, what if the couple were married in another country but divorce in Australia, and what happens to their property in Australia if the couple divorce overseas?

The recent decision by the Full Court of the Family Court in Anderson & McIntosh addressed that last question: what impact does a foreign divorce have on property held in Australia?

In this case the parties were married in Australia in 1988, they had three children, and separated in another country (known as “Country B”) in December 2009. Following separation the wife remained in Country B and the husband returned to Australia.

In May 2010 the parties reached agreement in relation to the division of the property they owned in Country B and in December 2010 a divorce was granted in County B. The property agreement did not cover the assets they owned in Australia.

On 10 July 2012 the wife filed an application for property division in Australia – for the assets held in Australia. The husband filed a response asking that the wife’s application be dismissed on the basis that more than 12 months had elapsed since the divorce had been granted in Country B and she was therefore required to obtain the consent of the Court before she could bring her Application as required by section 44(3) of the Family Law Act.

On 20 March 2013 the Judge dismissed the husband’s response. The husband appealed that decision.

The Full Court of the Family Court was required to consider whether the requirement to file an application for property division within 12 months of the date of divorce without it being necessary to obtain the leave of the Court in accordance with section 44(3) of the Family Law Act 1975 applies where parties have been divorced overseas.  

The Court found that section 44(3) referred to a “divorce order” rather than a “divorce” and throughout the Family Law Act there is a distinction between those terms.

The Court concluded that a foreign divorce is distinguishable – a “divorce” and not a “divorce order”. And therefore there was no requirement for the wife to have sought the Court’s consent to bring her application. The husband’s appeal was dismissed and the wife was able to proceed with her property division application in relation to the assets that the parties held in Australia.