LawTalk Blog

I was married overseas but now live in Australia. Can I apply for a divorce in Australia?

The answer is “Yes”. 

The Australian Family Law Courts have jurisdiction to grant a divorce if you were married outside of Australia, as long as at least one of the following pre-conditions apply:

  • You or your spouse regard Australia as your home and intend to live indefinitely in Australia; or
  • You or your spouse are an Australian Citizen; or
  • You or your spouse ordinarily live in Australia or have lived in Australia for at least one year immediately before applying for a divorce.

As long as one of the above conditions is satisfied, the Family Court of Australia or the Federal Circuit Court of Australia will be able to hear your Divorce Application.  So, for example, let’s say:

  • You are a citizen of the United Kingdom and were married 5 years ago to an Australian citizen in the United States of America
  • You separated 2 years ago and you went to live in New Zealand
  • Your spouse now lives in India

Under those particular circumstances, because your spouse is an Australian citizen, you are entitled to apply for a divorce in Australia even though you are not an Australian citizen and were not married in Australia.

You must still satisfy the usual requirements for a divorce to be granted by an Australian Court.  They are as follows:

  • The marriage must have irretrievably broken down
  • You must have been separated for at least 12 months
  • You must satisfy the Court that proper arrangements have been made for any children of the marriage.

Some additional procedural issues may need to be dealt with in the case of applying for a divorce where you were married overseas.  If, for example, your Marriage Certificate is not in English you will also need to file an English translation of the Marriage Certificate.

The translator will need to file an Affidavit attesting to their qualifications and that they have provided an accurate translation.

Problems might also arise with serving the other party with your Divorce Application in the event that party remains overseas.

If you have taken all reasonable steps to serve your Divorce Application on your spouse and you are unable to do so, you are able to apply to the Court for substituted service or dispensation of service.

Whilst it is possible to apply for a divorce in Australia where you were married overseas, the application process can be slightly more difficult than applying for a divorce in the usual circumstances. As such it is recommended that you obtain advice from a Family Lawyer experienced in this area of the law.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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