Which Country Should I Divorce In?

When a couple separates in Australia, it may be assumed that they will divorce under Australian law. However, there are other options for couples who were born or reside overseas, own property in other countries, or who no longer reside in the same country. In those cases, it can be confusing to decide which jurisdiction should determine the family law matter. The question can be important particularly when there is a need for final orders to be recognised overseas.

The country that hears a family law matter can have a significant impact on the outcome of a matter. Different countries can have quite different family laws, processes and timelines. In Australia, a valid joint application for divorce can be finalised with little delay, but in other countries, divorce is a lengthy court proceeding. There are countries where it is difficult to obtain a divorce, such as in Saudi Arabia, where a woman can only obtain a divorce with her husband’s approval or if he causes her harm. There are even countries where divorce is illegal, as it is in the Philippines and Vatican City.

Requirements for divorce in Australia

Australia has a “no fault” divorce system, which means that the courts do not consider the reasons for the marriage ending. The only acceptable ground for divorce is that the marriage is irretrievably broken down, proven by 12 months of separation.

Apart from irretrievable breakdown, the only requirements for a divorce in Australia is that:

• at least one applicant is a citizen, or domiciled in Australia, or is an ordinary resident for at least one year in the country;
• the marriage itself is recognised by Australian law;
• the couple have been separated for 12 months;
• the divorce application was served according to the Rules of the Court;
• arrangements have been made for the care of any children of the relationship; and
• if the marriage certificate is in a language other than English, the applicant has filed the marriage certificate with an English translation and an affidavit signed by an authorised translator.

Even if a couple married in another country, that does not mean that they need to dissolve the marriage in that country. The Family Law Act 1975 allows Australian courts to hear divorce proceedings of any applicant who meets the requirements set out above, regardless of where the couple were married.

Marriages and divorces that are not recognised

When a marriage does not meet the requirement, the court will not have the jurisdiction necessary to grant a divorce. For instance, some marriages are legally permitted overseas that are not recognised in Australia, or are actively prohibited in this country, such as:

• one of the parties was a minor under the age of 16;
• the parties were closely related, such as parent and child or siblings;
• polygamous marriage, when one of the parties has more than one spouse at a time.

If the marriage is not legally recognised by the court, then it follows that the court is not able to grant a divorce dissolving a marriage that it does not recognise as existing.

When a couple divorces in another country, it may or may not be recognised under Australian law. If either party was not afforded procedural fairness during the divorce proceeding, or it would be against public policy to recognise the divorce, then the court may determine that the marriage is still valid despite the orders issued by the overseas court.

Simultaneous filing

Sometimes a former couple will institute proceedings simultaneously in Australia and another country. In such cases, Australian courts apply the “clearly inappropriate” test to determine which court is the more appropriate forum to conduct the proceedings. This test considers the following factors:

• the value of assets held in competing jurisdictions;
• the length of residency of each party in each jurisdiction;
• when the matter involves children, where the children are located and their potential need to travel to be involved in the proceeding;
• the availability of expert witnesses in each jurisdiction and the costs of obtaining expert evidence;
• whether either jurisdiction could provide a complete resolution to the matter; and
• whether orders made in the competing jurisdiction will be recognised by Australian law.

The courts can stay or dismiss a divorce application if Australia is clearly an inappropriate forum for the proceeding. For instance, in Henry v Henry [1996], the High Court of Australia determined that Australia should not be the forum for a case when the proceedings were unfairly prejudicial, damaging or burdensome to the other party, causing unjustified and serious trouble and harassment. The court also held that it is vexatious to commence a second action in Australia if there is already an action pending in another jurisdiction.

Case study

The Federal Circuit and Family Court of Australia recently heard an appeal in the case of Diamond & Diamond [2024]. In this case, the wife appealed a divorce order on the ground that she had already filed for divorce overseas. The parties were both born and married in country B but were now citizens of Australia. According to documentation produced for the hearing, the husband filed in Australia a month before the wife filed proceedings in country B, but despite her claims that she had instigated “marital proceedings”, there was only evidence of criminal prosecutions and domestic violence injunctive proceedings.

The court rejected the wife’s submission that because the marriage occurred in country B, Australia was a clearly inappropriate jurisdiction to determine the divorce application. In the same way, the court had previously dismissed the wife’s assertion that an Australian divorce order would not be recognised in Country B. The appeal court agreed with the previous judge’s decision and dismissed the wife’s appeal.

The family law specialists at Go To Court Lawyers can provide advice about which country is the best jurisdiction to hear your divorce application. Please contact our offices on 1300 636 846 for legal advice or representation.