British Expat Divorce in Australia
This summary considers how Anglo-Australian family law issues may affect international families. This can arise as follows:
- Where the only relevant law is the law of England & Wales (England/English for short) and any litigation must be in the English courts.
- Where the only relevant law is the law of Australia and any litigation must be in the Australian courts.
- Where both legal systems are relevant and litigation can be launched in either or both countries.
David Truex, our partner based in Australia and London, acts for clients whose international connections mean that they need to consider both English law and Australian law. In appropriate cases, he will try to resolve disputes out of court, through negotiation, mediation or arbitration. When necessary, he conducts litigation in England or in Australia, depending on which jurisdiction best suits the client’s case. David is dual-qualified in Australia and in England. He is a Resolution accredited family law specialist (portfolios in International, Financial Advocacy and Complex Financial Cases) and an accredited Australian mediator and arbitrator.
How we can help
English family law
Our firm advises and represents British expats overseas, and non-UK citizens who live in England or have family or financial links to the UK, when they may be affected by the law relating to divorce and other family issues in England.
We advise clients from around the world. We assist them to divorce through the English courts and achieve a financial settlement under English law when the English jurisdiction best suits the needs of the client’s family.
Are you a British expat living in Australia, or a non-UK citizen with family connections to Australia or the UK?
If you are considering divorcing or separating from your spouse or partner, you will be wondering where to begin and what law will apply to you. You may think that you need to divorce in the country in which you were married. This is not the case. You may have several jurisdiction options.
If you or your husband/wife/partner were born in England & Wales, or have other connections to that jurisdiction, you may be able to divorce through the English courts. You can read more about whether you can divorce in England on our Divorce through the English Courts advice page. If you contact us, David or one of our other lawyers will telephone or write to you without charge to discuss whether you can divorce in England.
Australian family law
If you or your husband/wife/partner is an Australian citizen or living in Australia, or have other connections with that country, Australian law may be applicable to you and your family. David will personally review your situation and advise whether Australian, English or other law needs to be considered. If Australian and/or English law are applicable, he can advise which laws might be most appropriate and in which country you should have family law issues resolved.
Even where the parties are in full agreement, it may be advisable to get court orders made in England, Australia, and sometimes both countries to ensure that the agreement can be implemented. Common examples include when there is to be a transfer of real estate or a sharing of retirement benefits such as pensions and superannuation.
Using both jurisdictions
Where both Australian and English law are be relevant to your family situation, you may have the option of using both legal systems to achieve the most cost-effective and beneficial outcome.
For example, if you or your spouse are English but have all your assets in Australia, you may be able to do a divorce in England and get financial orders in the Australian courts. Or a family resident in Australia may have assets in England. In that case it may be necessary to get orders relating to the children in Australia and orders relating to the finances in England.
There are advantages and disadvantages in both systems. For example, Australian law has long recognised that cohabiting couples (de facto relationships) have financial obligations to each other that are similar to those applicable to married couples. There is no such law in England. Australia has had no fault divorce since 1976. English law still requires allegations of fault if you want to be divorced in less than two years from the separation date.
It is essential to consider the options in both countries to avoid making costly mistakes. We can ensure that the correct jurisdiction choices are made and take appropriate action as required.
A summary of Australian family law
Australia’s federal structure means that laws affecting families are made at both a national level and at a state and territory level. Most Australian family law is governed by the federal Family Law Act 1975 and federal child support legislation, administered by a federal Family Court and Circuit Court. Western Australia has its own peculiar state system of family law and family courts but its general principles are almost indistinguishable from the federal system. The states and territories govern laws relating to adoption and child welfare (that is, when the state intervenes to protect children from harm).
This summary focuses on the federal family law system. It is not intended to be legal advice but rather general information. If detailed advice is required about Australian federal, state and territory family laws, please contact David Truex.
Australian family law strongly encourages families to resolve disputes about money and children through out-of-court procedures such as counselling, direct negotiation, mediation, collaborative discussions between solicitors and arbitration. The courts direct potential litigants to a range of organisations offering such services before parties are allowed to start court proceedings. The government brochure Marriage, families and separation contains much useful information about these services.
For many people seeking family law help, a first port of call is the network of Family Relationship Centres (FRC) throughout Australia. The FRC staff can provide support, information and services such as counselling and mediation.
It is always prudent to get advice from a specialist family lawyer whenever intractable disagreements arise between spouses, partners or parents. At Expatriate Law, we believe that, if clients have a clear understanding of their legal responsibilities and rights at the outset of any domestic discord, this knowledge significantly improves the prospects that they will be able to work out the problems by themselves. If this won’t work, for example, if one party is violent, uncommunicative or otherwise not open to discussion, we are ready to take robust action to protect the interests of our clients and their families.
The Family Law Act proclaims that Australian law and Australian courts will protect the welfare of children resident in Australia, and Australian citizen children anywhere in the world. Some of the general principles applied to the resolution of disputes concerning children are:
- a court must regard the best interests of the child as the paramount consideration
- there is a presumption of equal shared parental responsibility
- the child should have a meaningful relationship with both parents
- the child’s views must be considered
- the child’s relationship with grandparents and other relatives must be considered
- for Aboriginal and Torres Strait Islander families, the child’s right to enjoy that culture with people who share that culture must be considered
Post-separation child arrangements vary widely according to the circumstances and preferences of the individual families. Shared parenting is common, with children spending substantial time with both parents in a variety of configurations. Where parents live far apart, it is more usual for children to reside with one parent and spend time with the other when circumstances allow.
A child must not be taken out of Australia without the prior consent of all persons with parental responsibility (including any government agency with parental responsibility).
Australia is party to the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention. This means that Australia will recognise and enforce parental responsibility rights which arise under the laws of other Convention members.
When couples are unable to resolve disputes about financial matters between themselves, the Family Law Act sets out the criteria for determining each party’s financial responsibilities and rights in relation to each other and their children. It also provides for a range of dispute resolution procedures including mediation, arbitration and court litigation.
The legal framework applies to married couples as well as unmarried couples who live together in what is called a de facto relationship. The de facto regime applies only if the claimant party can prove compliance with residence and relationship criteria. Establishing de facto jurisdiction may require legal advice in cases where the Australian geographical and relationship criteria are unclear.
The financial matters that may need to be resolved can include:
- child support (mostly dealt with by formulaic assessment via Services Australia, formerly the Child Support Agency at the Department of Human Services)
- spousal maintenance
- property adjustment
- sharing of retirement benefits such as superannuation
- restructuring of business, corporate and trust entities in which family members may have an interest
- dealing with the rights of third parties who may claim an interest in the assets owned by the family (mortgagees, other creditors, beneficiaries of trusts, etc.)
The main statutory principles applied to the determination of financial disputes include:
- financial and non-financial contributions, including contributions as a homemaker or parent
- the effect of a proposed order on the earning capacity of a party
- the effect of any existing order on a party or a child
- any child support assessment
- the age and state of health of the parties
- the financial resources of the parties
- whether a party has the care of a child
- the duration of the marriage
- a reasonable standard of living for each of the parties
This list in not exhaustive – there are other specified criteria plus a catch-all provision in section 75(2)(o):
any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
This suggests that the court will be open to creative advocacy when financial claims are being litigated.
Section 81 encourages the court to make orders that will end the financial relationship between the parties. This explains why it is unusual in Australia for spousal maintenance to be ordered after divorce. Financially weaker parties (usually wives) are induced to accept an increased share of capital to compensate for loss of the right to share in the income of the ex-spouse post-divorce.
Three significant aspects of Australian law are:
- financial proceedings are independent from divorce proceedings. A financial application may be issued in the court at any time, even before separation and divorce. It is possible to get a final clean break financial order while still married.
- written agreements concerning the financial relationship between the parties (maintenance, property adjustment, superannuation sharing, etc) are legally binding if properly executed according to the statutory criteria. This applies to agreements made before, during and after a marriage. The jurisdiction of the courts to deal with financial matters covered by such an agreement is ousted. Although it may be possible to find loopholes, as a general rule a properly written Financial Agreement which complies with the statute will be enforced on application to the court.
- the time limit for making a financial claim expires 12 months after the date on which a divorce order takes effect. There is provision for extending this deadline by consent or if hardship can be proved but this is at the discretion of the court. An application made after the 12-month deadline may be refused.
Divorce, children and finances
The sole ground for divorce is irretrievable breakdown of the marriage as evidenced by at least 12 months’ separation. Australia has had this no-fault system since 1976.
Sole and joint applications for divorce are permitted. Court attendance is not required unless there are unusual circumstances or complications. The application is filed at court on-line and the procedure is managed administratively. A divorce order takes effect to terminate the marriage automatically one month after the order has been made.
Many divorces are completed by parties in person without any assistance from the court or from professional advisors such as lawyers. However, the divorce does not resolve any issues relating to children or finances. Expatriate Law encourages in-person divorce, but parties are advised to seek legal advice first. Getting divorced in the “wrong” jurisdiction can be catastrophic for financial claims and may affect child welfare issues.
For example, if there is a property or pension in the UK, an Australian divorce may mean that it will be impossible to get enforceable court orders in either country to deal with those issues. If there are substantial assets or financial resources in the UK an English divorce may be preferable.
Parties are advised to seek legal advice about consequences of divorce for children and finances before commencing the divorce proceedings anywhere.
Some thoughts on jurisdiction
Expats and others with international connections can be both blessed and cursed by their status. On the positive side is the fact that we have a wider view of the possibilities that the world offers to us and our families. But this comes with the problem of managing a wider range of issues. The international life can be like playing three-dimensional chess. Taxation, wealth management, inheritance, health care and insurance, children’s education and socialisation – these are but a few of the challenges.
When family law problems disrupt domestic harmony, international families are hit harder than others. They may need to get legal, financial and other advice in two or more countries. Although modern technology gives the appearance of making us citizens of the world, in many respects we are bound by legal and cultural protocols specific to our nationality, domicile, residence or financial interests.
In the context of Anglo-Australian family law this means there are traps and opportunities. The problems that can be inadvertently created by divorcing in the wrong jurisdiction are referred to above. But there are benefits for those who seek them out:
- a cohabiting partner who has no right to make financial claims while living in England may acquire de facto relationship rights after moving to Australia, thus opening a hitherto closed door to financial claims under Australian law.
- a parent living with a child in Australia may be able to use the UK Children Act to make claims in the English court against the parent living in England for the maintenance of her child.
- A parent living with a child in England may be able to use the UK Children Act to make financial claims in the English court against the parent living in Australia, such claims to include not only maintenance for the child but also claims for lump sums and settlement or transfer of property for the benefit of the child.
To ensure that you are able to make all the claims to which you may be entitled in any jurisdiction it will be prudent to seek legal advice in each relevant jurisdiction before taking any action.