Posted by Dylan Williams, Family Law Solicitor.
If you and your spouse were married overseas, are you eligible to get a divorce in Australia? A divorce lawyer Parramatta examines whether the Court can grant a divorce in those circumstances.
You may be able to get a divorce in the Federal Circuit Court provided you satisfy the following elements:-
- Is the marriage valid under Australian law?
- Does the Court have jurisdiction?
- Have you complied with service?
- Has the marriage broken down irretrievably?
- If there are children of the marriage under the age of 18 years, what are the arrangements for their care, welfare and development and is it acceptable?
Focusing on items 1 and 2 above. If you would like a further discussion of divorces, please click here to access another paper that explores divorces generally.
Is the marriage valid under Australian law?
Before the Court is able to grant a divorce, the marriage needs to be legally recognised as valid in Australia. Part VA of the Marriage Act 1961 enables us to examine whether the marriage is valid.
Section 88D of the Marriage Act confirms a marriage is not valid if (in summary):-
- at the time of the marriage, one of the parties was already in a valid marriage;
- one of the parties was not of marriageable age;
- the parties are within a prohibited relationship; or
- one of the parties did not give real consent (i.e. duress, fraud).
However, the above list is not exhaustive. It is recommended you seek advice from a divorce lawyer Parramatta to advise you whether any issues will arise regarding the validity of your marriage.
Does the Court have jurisdiction?
When you file the Divorce Application, you will need to satisfy the Court that you or your spouse falls into one of the following categories:-
- Regard Australia as your home and intend to live indefinitely in Australia as an Australian citizen or resident;
- Are an Australia citizen by birth or descent;
- Are an Australia citizen by grant of an Australia citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
If the above is satisfied, the Court will have jurisdiction to deal with the divorce application. You will need to then satisfy the other requirements.
When you file the Divorce Application, you will also need to provide a copy of the marriage certificate. If the marriage certificate is in a language other than English, you will need to organise for the marriage certificate to be translated by a qualified translator. The translator will need complete an affidavit confirming that the translation of the marriage certificate is accurate.
If you are unable to locate the marriage certificate, further complications arise. You will need to complete an affidavit to detail all reasonable steps you have taken to obtain the marriage certificate. If the Court is not satisfied, they will direct you to take further steps.
A Divorce Application can be complicated when you and your spouse were married overseas. It is recommended you engage with a divorce lawyer Parramatta to deal with your Divorce.
For advice about how to get a divorce contact us on 1800 300 170 or email us at famlaw@matthewsfolbigg.com.au
Disclaimer
Family law situations can be complex and sometimes they can involve serious issues. Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.
