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Overseas Divorce & Australian Property Settlement

Overseas Divorce & Australian Property Settlement

'Divorce' and 'property settlement' are different but related concepts.

A 'divorce' is the legal ending of a marriage. In Australia, you can apply for a divorce by filing an Application for Divorce at a Family Law Courts Registry. This application will not determine your children's care arrangements or how your property is to be divided.

A 'property settlement' is the division of your property. You can apply for a property settlement by filing an Initiating Application at a Family Law Courts Registry. You can seek orders from the court, for example, that your house be sold, that you have possession of a certain car, or that you retain a particular business interest.

In Australia, there is a time frame within which a married person must file their application for property settlement, which is 12 months from the date of divorce. This means that if you are married, you are able to file application for property settlement at any time; however, once you are divorced, you have 12 months to apply for a property settlement. If you do not apply within this time frame, you must show the court why leave should be granted for you to apply for property settlement orders.

In the case of Anderson & McIntosh [2013] FamCAFC 200 ("Anderson"), the parties had lived in another country for a number of years. They had property in that country as well as in Australia. The parties were divorced in that country and had a property settlement in 2010, but no orders were made about their Australian property. In 2012, the wife filed an application in the Federal Circuit Court of Australia seeking property settlement orders. The husband argued that the wife should have to seek leave to do so, because the parties had already been divorced and it had been more than 12 months since the divorce was granted. Initially, the trial judge held that the wife did not need to seek leave.

The husband appealed the trial judge's decision to the Family Court of Australia. The husband's appeal was dismissed. The Court found that even though a foreign divorce order is recognised by the Family Law Act, it is not a "divorce order" within the meaning of the Act. As such, the wife did not need to seek leave to apply for a property settlement.

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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.