Can I File for Divorce in Australia if I was Married Overseas?

There are a few considerations that need to be taken into account when determining if you can file for Divorce in the Federal Circuit and Family Court of Australia (FCFCOA) when you were married overseas.

 

Firstly, you need to prove one of the following elements: 

• Are you or your spouse an Australian Citizen? This can be by either birth, descent or Grant of Citizenship.
• Have you or your spouse lived in Australia for the last 12 months prior to filing for Divorce?
• Do you regard Australia as your home and intend to live here indefinitely?

 

If you satisfy one of the above 3 criteria, you are eligible to file for Divorce in Australia. You will need to be able to provide evidence that you satisfy one of these criteria. 

 

To apply for Divorce, you need to provide the Court with a copy of your Marriage Certificate. In the event your Marriage Certificate is not in English, you will be required to have it translated. A qualified translator needs to undertake this task and provide an affidavit to the Court that the translation is accurate and that they are qualified to undertake the translation. 

 

What if my spouse is overseas?

When filing an Application for Divorce, there are two types of Applications you can file. These are either: a sole Application for Divorce or a joint Application for Divorce. 

 

If your former partner is agreeable to filing for divorce, you can file a joint Application. This requires both of you to agree on the contents of the document and you will both be required to sign the document. If your former partner is overseas they will need to find the appropriate witness (such as a Solicitor, Notary or Justice of the Peace) to witness their signature on the document. 

 

If your former partner is not agreeable to filing for divorce, you will need to file a sole Application. Once filed, you will be required to serve a copy of this Application upon your former spouse, no less than 42 days before the Divorce Hearing. 

 

In the event you are unable to serve your former partner, you will need to apply to the Court and seek an order for either: Substituted Service or Dispensation of Service. 

 

• Substituted Service is where you serve your former partner either by way of email or you serve a third party who will pass those documents onto your former partner. You will need to satisfy the Court that this third party is reliable and will pass on the documents.

 

• Dispensation of Service is where you are not required to serve your former partner, however, you have to satisfy the Court that you have made all reasonable attempts to do so. 

 

Note that you have to be separated for a period of 12 months before you can file an Application for Divorce. 

 

If you require assistance with your Divorce matter or your family law matter generally, please do not hesitate to contact our Family Law Team by calling (07) 4771 5664 or submitting an online enquiry on the Family Law page.