Overseas property is an asset and must be declared along with all other property of the marriage or de facto relationship. Failure to disclose property can result in an unfavourable result to the non-disclosing party.

Full and frank disclosure must be demonstrated when identifying and declaring assets. Failure to fully disclose may later provide the Court with the option of favouring the other party due to dishonesty or lack of credibility on the part of the non-disclosing party.

Many married Australians own properties in the country and or overseas. What happens to these properties in the unfortunate event of a divorce?

A recent verdict by the Full Court of the Family Court of Australia in Anderson & McIntosh’s (2013) FLC 93-568 case showed.

The Anderson & McIntosh Case

The couple involved in the case, married in Australia in 1988. They shifted base to another country in 2006 and then separated in 2009. Finally got divorced overseas in December 2010. A decree from a foreign country relating to the properties was issued. There were no Orders sought for the couple’s properties in Australia.

The parties reached an agreement on the settlement of the properties in the foreign land, which received approval from the Court in that country. During the same time, a divorce decree was issued. The foreign court’s ruling did not deal with the couple’s properties in Australia.

The wife made an application to an Australian court in relation to the property settlement 12 months after the divorce. The Husband sought to have her application dismissed citing the reason that it had been more than 12 months since the divorce and that the S 44(3) of the Act necessitated a Leave of Court for instituting court proceedings, with respect to the settlement of properties in Australia.

The Husband’s plea was dismissed and so he made an appeal to the Full Court, which was also dismissed.

Overseas Divorce not a “Divorce Order”

The following are the key points from the Full Court verdict in the Anderson & McIntosh case:

• A divorce obtained overseas is recognized under Section 109 of the Family Law Act 1975. But, under the Act, the rights that the parties are entitled to in an overseas divorce are not the same as in the case of a divorce obtained in Australia.
• Section 44(3) of the Act does not recognize an overseas divorce as a “divorce order”. So, a Leave of Court – permission from the Court to take an action – is not needed to begin legal proceedings in Australia even if it has been 12 months or more since the divorce

Options to Reduce Overseas Divorce Impact

The following options could have been explored by the Husband in the above case to reduce the impact of the overseas divorce:

• The Husband could have appealed for property settlement of the Australian properties in the foreign country provided such a plea is acceptable in that country.
• The Husband could have sought orders in relation to property settlement for the properties in Australia at the same time as orders were being sought by the Wife in the foreign country. The Husband could also have entered into a financial agreement as specified by the Act for a property settlement with respect to the Australian properties.
• The Husband could have sought a divorce in Australia.

If you are to undertake getting divorced overseas, it is critical to understand the legalities surrounding property settlement in that country and any country you own properties.

A mutually agreeable decision can be reached only when all facts are available. The assistance of legal experts in such cases becomes invaluable.

Get in touch with the legal experts at Mathews Family Law & Mediation. We are one of Melbourne’s leading law firms with years of experience and a track record of delivering successful outcomes in divorce proceedings, family law property settlement, child support, spousal maintenance, mediation and a range of other family law issues.

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