Do You Have to Divorce in the Country You Were Married?

do you have to divorce in the country you were married | Dandenong Family Lawyers

Do You Have to Divorce in the Country You Were Married?

No, you do not have to divorce in the country where you were married. In Australia, you can apply for a divorce regardless of where your marriage occurred, provided you meet certain legal criteria.

Eligibility Criteria for Divorce in Australia

To be eligible to apply for a divorce in Australia, you need to satisfy the following criteria:

  • Residency: Either you or your spouse must be an Australian citizen, domiciled in Australia, or ordinarily resident in Australia for at least 12 months before filing for divorce.
  • Separation: You must have been separated for at least 12 months and 1 day with no reasonable likelihood of resuming married life.
  • Marriage Validity: Your marriage must be legally recognised in Australia.

If these conditions are met, you can proceed with the divorce application regardless of where the marriage occurred.

Key Takeaway: You can divorce in Australia if either party is an Australian citizen, domiciled, or resident for at least 12 months, you have been separated for the required period of 12 months and 1 day and the marriage is legally recognised in Australia.

The Divorce Process for Overseas Marriages

The process for divorcing in Australia when married overseas is similar to that of domestic marriages but requires additional documentation.

  1. Filing an Application
  • You can file a divorce application individually (sole application) or jointly with your spouse (joint application).
  1. Providing Documentation
  • If you were married overseas, you need to provide a copy of your marriage certificate. If the certificate is not in English, you must also provide a translated copy and an affidavit from an Australian certified translator.
  1. Serving the Application
  • In a sole application, you must serve the divorce papers to your spouse, ensuring they know the proceedings. If your spouse resides overseas or their address is unknown, this can complicate matters and legal assistance is often required.
  1. Attending a Hearing
  • A hearing may be necessary if there are children under 18 or if the application is contested. Otherwise, the divorce can often be processed without a court appearance.
  1. Decree Absolute
  • Once the court grants a divorce order, it becomes final one month and one day later, known as the “decree absolute.”

Key Takeaway: The divorce process in Australia for marriages conducted overseas includes filing an application, providing necessary documentation, serving papers, attending a hearing if required, and obtaining a decree absolute.

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Recognising Overseas Marriages and Divorces

Australia recognises overseas marriages if they were conducted according to the laws of the country where the marriage took place. However, divorces obtained overseas may not be recognised in Australia if they do not comply with Australian legal standards.

  1. Validity of Marriage
  • The marriage must be legally valid in the country where it was performed and must meet the requirements under Australian law.
  1. Validity of Divorce
  • For an overseas divorce to be recognised, it must meet the legal standards of the country where it was obtained and align with Australian principles of justice and procedural fairness.

Key Takeaway: Overseas marriages are recognised if legally valid in the respective country, but overseas divorces must comply with Australian legal standards to be recognised.

Factors to Consider

When seeking a divorce in Australia after marrying overseas, consider the following:

  • Legal Advice: Consulting with a family law solicitor can help navigate complex legal requirements and ensure all documentation is in order.
  • Jurisdictional Issues: Understanding the jurisdictional nuances between countries can help manage cross-border legal implications.
  • Financial and Custody Matters: Addressing financial settlements and child custody arrangements might require separate legal proceedings, which can be influenced by international laws and regulations.

Key Takeaway: Obtaining legal advice and understanding jurisdictional issues are crucial when divorcing in Australia after an overseas marriage, particularly regarding financial and custody matters.

You do not need to divorce in the country where you were married. In Australia, you can apply for a divorce if you meet specific residency and separation requirements, regardless of where the marriage occurred. By understanding the legal process and seeking appropriate advice, you can navigate the complexities of international marriage and divorce effectively.



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