International Family Law

When a relationship breaks down, it is often a challenge to resolve how property and other assets will be divided between the divorcing spouses or separating partners. These issues become even more complicated when the parties are living in different countries or some of the assets of the relationship are located outside of Australia.

It is important to understand that courts in other countries may take a different approach to Australia when it comes to determining how property and assets should be disclosed, valued, protected, and distributed.

If you have property in another country, or even in multiple countries, Australian courts have a general power to make property adjustment orders in relation to assets outside of Australia. There may, however, be technical issues in relation to enforcement, implementation, and tax issues which you also need to consider. For example, with some superannuation funds there are specific rules which require an order in their home jurisdiction to give effect to any to an Australian order.

You may also need specialist tax advice as some of the relief or exemptions will only apply if you have an Australian court order. This has the potential to create a substantial tax obligation, which you will need to consider carefully and possibly bring together a team to look at your settlement from a global perspective rather than a one-dimensional view.

It is important also to identify the strategic advantages and disadvantages of filing proceedings in certain jurisdictions. Before you decide how to proceed, consider the following questions, and seek advice:

• Do you have a pre-nuptial agreement (such as an Australian ‘Binding Financial Agreement’)? If you are currently living overseas, is the agreement enforceable in that jurisdiction?
• Do you have assets and property outside of Australia? What about superannuation and/or pension entitlements?
• What are the tax implications of filing for divorce in a particular jurisdiction?
• Are you seeking child support? Is your spouse residing in a reciprocating country as specified in the Child Support (Registration and Collection) Regulations 1988?
• Are you entitled to payments under an overseas spousal maintenance order? Can you have the order registered and enforced in Australia?
• How are the property and assets likely to be distributed in a particular jurisdiction?
• Does the court in the jurisdiction in which you are commencing proceedings have the power to grant protective-type orders that will prohibit your spouse from transferring assets out of the reach of the court?

Families who are living in different countries face a unique set of challenges. When a relationship breaks down, questions relating to the parenting arrangements for the children are often the most challenging to resolve. International care arrangements for children is a particularly complex area of law.

If you are living in Australia and want to relocate to another country with your child or children, you will need the consent of your spouse or partner. If you and your spouse or partner cannot agree on the matter, you will have to apply for a court order to allow the child to live with you outside Australia. To obtain a court order, you will have to persuade the court that it is in the child’s best interests to reside with you in that overseas country.

Under the Hague Convention on the Civil Aspects of Child Abduction (Hague Convention), you will be ‘wrongfully removing’ the child if, without the permission of the other parent, you take the child from the country where they were ‘habitually resident’.

International parental child abduction occurs when a parent or guardian takes a child out of Australia without either parental permission or authorisation by a court.

It can also occur when a child is removed from their country of origin and retained in Australia.

If you are based in Australia and believe that your child has been abducted by your spouse, partner, or other person, and you believe they may be taken overseas, there are a few things you can do:

• If your child has not yet left Australia, you can apply for a court order to have your child placed on the Family Law Watchlist.
• If your child has been taken to a country that is a member of the Hague Convention, you can apply for the return of your child.
• If your child has been taken to a country that is not a member of the Hague Convention, there may be other legal steps you can take to have your child returned to you.

If you are a parent or guardian and you live in a different country from your child, you may still need to seek access arrangements to ensure that you can spend time with your child. If your child is habitually resident overseas and the other parent is refusing to allow you to spend time or contact the child or children, this can sometimes be resolved through legal correspondence. Alternatively, it may be necessary to issue court proceedings in that country. There may be other legal avenues to explore depending on the country in question.

It is always advisable to seek legal advice if you wish to seek access to a child based overseas.