01 Oct Can you get divorced in Australia if you were married overseas?
The decision to divorce is never made lightly. Often, it’s something one or both partners have thought about for a long time.
They’ve likely considered what their financial situation could look like after a divorce. Thought about how their parenting arrangements might work. Contemplated what the housing arrangements would be.
And if they were married overseas, they have probably also worried about what extra processes or paperwork might be required. Or if it’s legally possible at all.
In this article, we’ll investigate whether you can get a divorce in Australia if you were married overseas.
Can you get divorced in Australia if you were married overseas?
Yes, you can get a divorce in Australia if you were married overseas. Provided you meet certain criteria.
Let’s take a look at the factors influencing this.
Is your marriage legally recognised in Australia?
To get divorced in Australia, your marriage must be legally recognised in this country. This is in accordance with Part VA of the Marriage Act 1961.
In most cases, overseas marriages are recognised in Australia. There’s no need to register the marriage here. Usually, an original or certified copy of your marriage certificate or record of marriage is enough proof.
For an overseas marriage to be recognised in Australia, it has to be:
- valid under the law of the country where the marriage took place or
- valid under Australian law if the marriage had taken place here.
All the usual conditions for marriage in Australia also apply, including:
- Neither person can currently be married to someone else.
- Both people must be over the age of 18, unless court approved.
- Parties cannot marry a close family relative.
- Parties must understand the meaning of marriage and be entering into it freely.
Conditions for getting a divorce in Australia if married overseas
If you were married overseas, you can apply for a divorce in Australia if either you or your partner:
- Are an Australian citizen by birth, descent or by granting of citizenship, or
- Ordinarily live in Australia and have done so for the 12 months prior to filing for divorce, or
- Consider Australia your home and plan to live here indefinitely
To divorce in Australia, whether they were married overseas or not, parties must also have been separated for at least 12 months. In addition, there needs to be no reasonable chance the parties will get back together.
Is your marriage certificate in English?
You will need to provide a copy of your marriage certificate to the courts when filing for divorce.
If yours isn’t written in English, you will need to get an English translation. This will then be submitted to the courts with an affidavit translation of marriage certificate.
Is your partner living overseas?
Can you get divorced in Australia if you got married overseas and your partner is still living internationally? In short, yes. This is because only one of you needs to fulfill the residency requirements set out above.
The difficulty in divorcing someone who lives overseas is being able to serve them the relevant documents. This typically includes notice of your application for divorce and the date of your hearing. Your partner needs to receive these at least 42 days before your matter is heard in court.
If you’re unable to contact them, the courts will want to see that you have made all reasonable attempts to do so.
In this case, you may have to opt for a Substituted Service. This is where the documents are served to someone close to them so they can be passed on. If this isn’t possible, there may be a Dispensation of Service, which means nobody is served.
Need help?
In short… Yes, you can get divorced in Australia if you were married overseas, but divorce is never easy. On top of the emotional pain, there is also paperwork and red tape to wade through. Maybe even more so if you had an international wedding.
Our team can help make the process as smooth as possible. The Toomey Family Law team has decades of experience achieving equitable divorce solutions for our clients. Get in touch today.