How to get a divorce in Australia if married overseas

How to navigate international divorce law in Australia

Going through divorce is often emotionally, and psychologically challenging. Even more so if you got married overseas, as there are often legal variables to consider. You may be asking yourself questions like:

• Can I get divorced in Australia if I was married overseas?
• How do I contact my ex-spouse if I don’t know where he or she is currently living?
• What if my marriage contract isn’t written in English?

We’ve cut through the legal-speak, so you can easily understand how to get a divorce in Australia if married overseas.

At Australian Family Lawyers, we specialise in family matters. Contact us, and we can explain what you need to do when it comes to an overseas marriage and processing a divorce.

You can get a divorce in Australia if married overseas if:

• You or your spouse is an Australian citizen (by birth, descent, or grant of Australian citizenship)
• You or your spouse live in Australia or have lived in Australia for the past immediate 12 months before applying for your divorce
• You regard Australia as your home and intend to live here indefinitely

If you meet one of the above three criteria, then you can apply for divorce through the court. You’ll need to be able to provide proof, however, of your circumstances.

What other considerations need to be made?

Even if you were married overseas, and the criteria for qualifying for a divorce in Australia seems relatively simple, there are a few things which can complicate the process.

Time limits on serving the application of divorce

If your spouse is overseas, you must serve them the divorce documents at least 42 days before your court hearing.

Your marriage certificate is not in English

You’ll need to hire a qualified person to translate your marriage certificate. They will need to sign an affidavit swearing that the translation is accurate, and they have the correct qualifications to translate.

Your spouse is living overseas

If your spouse is living overseas, you may find it hard to serve them your divorce application. If you can’t locate them, and have taken all reasonable steps to do so, you can apply to the Court for:

• Substituted service: You can serve your court documents to a third person who will pass on the documents to your spouse
• Dispensation of service: You won’t have to serve court documents on your spouse if the court agrees you have made all reasonable attempts to do so

The Federal Circuit Court recommends seeking legal advice before applying to the Court for Substituted or Dispensation of service.

Seeking guidance or support

It doesn’t matter whether you’re married or in a de facto relationship, separation and divorce can be distressing and emotionally challenging. The breakdown of a relationship is not just heartbreaking – it can also be financially draining. Understanding the legal process of property settlement, how to serve divorce papers, and sorting out the custody of your children – it’s a lot to get your head around.

It might be the last thing on your mind, but if you don’t spend time exploring all your options, you may regret your decisions in the future. Look after yourself, and your family, by seeking professional support from qualified lawyers.

What we can do for you

At Australian Family Lawyers, we will help you with things like:

• Preparing a plan and providing objective advice
• Sorting out legal paperwork and documents
• Working out financial obligations and property settlement
• Mediating between you and your ex-spouse, so you don’t have to contact them if you don’t want to
• Helping you relocate when you have children with your ex-spouse

We cut through the legal jargon to deliver you clear advice. We want to avoid putting you through a court hearing. In fact, 95 per cent of our matters settle before a final hearing.

What the Court considers when applying for a divorce

The courts don’t consider why a marriage ended, only that it has broken down and cannot be repaired.

• You must be separated for 12 months before making a divorce application.
• If you have children under the age of 18, a court can only approve your application if you’ve made satisfactory arrangements for them.

Response to divorce application

If your spouse doesn’t want to get divorced, or they dispute any facts in the Divorce Application, they have a right to submit a Response to Divorce application. This will need to be submitted within a certain number of days since the original serving of the divorce papers.

• If your partner was served in Australia: 28 days
• If your partner was served outside of Australia: 42 days

Attending the court hearing

Whether you have to attend the court hearing or not depends on your circumstances.

You are not required to attend if:

• You have no children under the age of 18
• You have made a joint application with your spouse and have children under the age of 18
• You are the Respondent and you do not oppose the Divorce Application

You are required to attend if:

• You have made a sole application and you have children under the age of 18

If you have adequate reasons why you can’t attend, you can arrange to appear by telephone. In this case, you will need to submit a request form setting out the reasons why you can’t make it in person.

At Australian Family Lawyers, we are responsive and accessible. We understand that one size does not fit all when it comes to family matters. We translate legalese for you, so you can concentrate on your personal health and relationships.

We offer advice for a range of issues surrounding divorce, including:

• Child custody
• Separation and divorce
• Asset protection
• Property settlement
• Binding financial agreements

Our friendly and supportive team will help you get through this challenging time. Book a free consultation today.