Separation is a hard time in anyone’s life but what happens when one party to the relationship is outside of Australia and does not return? Or if one party cannot be located? Can you still proceed with an application for Divorce? Similarly, if you hold property or assets in Australia and overseas, then determining where to deal with any family law matters in the event of separation may be challenging. In some situations, there may also be children of a relationship, and having their parents located internationally may directly impact them and their interests.
Which country is best to commence your family law financial matter?
If you hold assets in both Australia and overseas, then the first step is to obtain legal advice both in Australia and in the country that your overseas assets are located.
Financial proceedings can be instituted in Australia if either party to the marriage is an Australian citizen, ordinarily a resident in Australia, or is present in Australia at the time of filing proceedings.
Each country and jurisdiction has its own approach to a property settlement in family law matters, including what is considered to be an asset of the relationship, and how the assets are to be treated upon the end of a relationship. This means that there may be benefits to you commencing financial/property proceedings in one country over another.
It’s also important to consider how different countries will treat or enforce property/financial orders made in another country, or if they will even be recognised.
Difficulties arising when you are in Australia and your former spouse is overseas
Other than possible issues enforcing orders in overseas jurisdictions, if you are living in Australia, and you decide to commence proceedings in Australia while your former partner or spouse is living internationally, there can be difficulties in serving Court documents on them. This is especially difficult if you are unable to locate them.
Different types of family law matters have different requirements for service, although generally service by hand is the most common method. This means the documents are hand delivered to the other party or the person who is supposed to be receiving them.
In circumstances where you have done all you can to locate your spouse, or serve them with the Court documents but they still cannot be located, you may be able to apply to the Court requesting an order for:
- Substituted Service; or
- Dispensation of Service.
Substituted Service allows you to serve documents on your partner in a manner other than that specified by the Court. For instance, if attempts have been made to serve the documents by hand, and the other party has been evading service, then the Court may instead order that service can be done by email, or by posting the documents to that person’s last known address. There have even been circumstances where the Court has made order for documents to be served by way of Facebook messenger, or by sending a text message to the other party putting them on notice of the proceedings.
A Dispensation of service order is made when the Court is satisfied that you have made all reasonable attempts to locate your former partner or spouse and serve them in the specified method, as well as by other means, and the Court thereafter waives the requirement for service.
To apply for either substituted service or dispensation of service orders, you need to complete an Application in a Proceeding and an Affidavit supporting your Application. In the Affidavit you will need to explain the steps you have taken to locate your former partner or spouse, and the difficulties you have encountered in your attempts to contact and/or locate them. It is always best to seek assistance from an experienced family lawyer when drafting your Application and Affidavit.
What if there are children of the relationship?
As detailed in our article “are children allowed to travel overseas after a separation,” children are not permitted to travel overseas whilst parenting proceedings are active in the Family Court, without the express written consent of both parties.
If you believe your former partner or spouse is planning to take any children of the relationship overseas, or has already done so, there are steps that can be taken to obtain a Court Order preventing the children from leaving the country (pending the final resolution of the parenting dispute).
If a child is removed from Australia and the other parent is refusing to return the child, then there may be avenues available to retrieve the child. These avenues include those established by the Hague Convention on the Civil Aspects of International Child Abduction, to which Australia is a signatory along with 95 countries around the world. The Hague Convention provides a legal framework through which a parent can seek to have their child returned to their home country.
If your former partner or spouse takes your child to a jurisdiction that is not a signatory to the Hague Convention, trying to recover an abducted child/ren is much more complicated. If you are concerned that your former partner or spouse is likely to relocate and unilaterally take the children, it is recommended to speak to an experienced family lawyer as a matter of priority to mitigate these risks.
How do I apply for Divorce if one party is living overseas?
Prior to making an Application for Divorce (‘Application’), you must be separated from your spouse for at least 12 months, and either solely or jointly agree and acknowledge that the relationship has irretrievably broken down.
Separations that involve one party being overseas will not halt the Application process.
Once you have filed your Application, you must serve a copy of the Application and associated documents on your former spouse in the country that they are residing in.
The way in which the documents are served will depend on where your partner is residing and whether that country is a Signatory to the Hague Service Convention. Noting that if your former partner or spouse is overseas, service must occur at least 42 days prior to the divorce hearing.
Need advice on international separation or a family law matter?
It can be daunting when trying to navigate a family law matter, particularly if more than one country is involved and there are different rules and regulations that you need to comply with.
Our experienced Sydney family lawyers are here to assist. Get in touch with us below or call us on (02) 9262 4003 for a confidential discussion.
The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.
Jack works as a Paralegal for Ivy Law Group. Since joining the firm, Jack has developed a genuine interest in Commercial and Family Law. Jack assists our lawyers with a variety of tasks in both family and commercial law and regularly conducts legal research for the firm.
