Can I get divorced in Australia if I was married overseas?

If you and your spouse were married overseas, you can still get a divorce in Australia. The Australian Family Law Courts are able to grant a divorce for overseas marriages, as long as at least one of the 3 conditions apply

3 Conditions for Divorce

You or your spouse are an Australian citizen, or

 

 

You or your spouse think of Australia as your home, or

 

 

You and your spouse normally live in Australia and have lived in Australia for at least one year immediately before applying for a divorce

 

 

If one of these pre-conditions applies to your circumstances, then the Federal Circuit Court of Australia can hear your Divorce Application.

 

 

In order to clarify any confusion, the law will be applied to the following scenario. Imagine:

 

 

  • You are a citizen of Canada.

 

  • 6 years ago you were married to an Australian citizen.

 

  • The marriage took place in the United States of America.

 

  • You have separated from your spouse 2 years ago.

 

  • You now live in Singapore.

 

  • Your spouse lives in New Zealand.

 

 

Even though in this circumstance, you are neither an Australian citizen nor you nor your spouse ordinarily reside in Australia, under Australian law you would be entitled to get a divorce in Australia. This is because your spouse remains an Australian citizen.

 

 

getting married overseas and then divorced in australia raises some issues

The usual requirements for a divorce application would have to be satisfied. Briefly, these are:

 

  • Your marriage must have irretrievably broken down
  • You and your spouse must have been married for at least 2 years
  • If this is not the case, you must attend counselling with your spouse, or, if this is not possible, file an Affidavit explaining why/special circumstances.
  • You and your spouse must have been separated for at least 12 months
  • This can include separations under the same roof. However, evidence of separation during the cohabitation period will need to be proved via filing an Affidavit.
  • The Court must be satisfied that reasonable arrangements have been made for the care of any children of the marriage (under 18 years of age)

Procedural Issues for Consideration

There are further procedural issues that may arise if you were married overseas but seeking a divorce in Australia. Here are some questions that can arise:

 

 

What if my marriage certificate is not in English?

 

 

You must file your Marriage Certificate in court and it must be translated into English. The English translator must file an Affidavit:

 

 

  • Swearing that they have the qualifications to translate; and
  • that the translation is accurate; and
  • the attached copy of the marriage certificate is a true copy

 

What if my spouse is living overseas and I can’t serve them the Divorce Application?

 

 

You must take all reasonable steps to serve the Divorce Application to your spouse. You can apply to the Court for substituted service or dispensation of service if you are having difficulty serving the Application.  In order to apply, you will need to complete an application in a case and an affidavit, which are available at www.federalcircuitcourt.gov.au.

 

 

Keep in mind that if your spouse lives overseas, after serving them the Divorce Application, you need to allow for at least 42 days before the court hearing.