Do foreign divorces amount to divorces orders under Australian law? A divorce lawyer examines the leading case on this issue: Anderson v McIntosh  FamCAFC 200.
Section 44(3) of the Family Law Act provides that leave from the court is required to institute property proceedings if the proceedings are brought 12 months after a divorce order comes into effect.
However, in Anderson v McIntosh Murphy J made an order to the effect that a divorce lawyer does not require leave under s 44(3) to commence property proceedings where that divorce was granted overseas.
The parties divorced in a foreign country in 2010 and reached a property agreement in that country for the property in that country. No orders were made in relation to property held in Australia. In 2012, the wife filed an application pursuant to s 79 of the Act seeking an equal division of the assets of the parties.
Murphy J considered whether s 44(3) applies to applications for property settlement in cases where the parties are divorced overseas. If so, the wife’s application is out of time and leave would be required to continue the proceedings.