Overseas destination weddings are commonplace nowadays (although perhaps not so much during COVID-19), but can raise questions with respect to whether the marriage is recognised in Australia, and what happens when the marriage breaks down.
Do you need to register your overseas marriage in Australia?
If you were married outside Australia, your marriage does not need to be “registered” in Australia for it to be recognised as valid. Your overseas marriage (including overseas same-sex marriages) will generally be recognised in Australia provided that:
(a) The marriage is recognised under the law of the country where you got married; and
(b) The marriage would have been recognised as valid under Australian law, had you married in Australia. Certain circumstances will prevent a marriage from being recognised as valid in Australia, for example, if either party is validly married to another person at the time of the marriage. There are other situations which will prevent a marriage from being validly recognised in Australia – please feel free to contact us if you require any advice in this regard.
Can you get a divorce in Australia if you were married overseas?
The Court must be satisfied that it has jurisdiction to make a divorce order. You will be able to make a divorce application in Australia, provided that either you or your spouse:
(a) Regard Australia as your home and intend to live in Australia indefinitely;
(b) Are an Australian citizen by birth, descent or by grant of Australian citizenship; or
(c) Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You and your former spouse can make a divorce application together (known as a “joint application”), or you may choose to make the application by yourself (a “sole application"). Regardless of whether you make a sole or joint application, you will need to provide a copy of your marriage certificate to the Court when making your application. If your marriage certificate is not in English, it will need to be translated by a certified translator, and an affidavit from the translator will need to be filed with the Court.
There are also costs associated with filing a divorce application, which can be found on the Federal Circuit Court website. If you choose to make a joint application, you and your former spouse may agree to share the costs of the Court filing fee.
For a Court to make a divorce order, the Court needs to be satisfied that you and your former spouse have been separated for at least 12 months prior to filing for the divorce. It is possible for you and your former spouse to have been separated while still living together (this is referred to as “separation under the one roof”), and if this is the case, you will need to provide evidence to the Court supporting the separation. There are also other requirements that the Court must be satisfied of, including but not limited to appropriate service of the divorce application documents on the other party.
It is important to remember that once a divorce order is made by the Court and comes into effect, you have a 12 month period to commence property proceedings in an Australian Court.
If you require advice with respect to overseas marriages and/or divorce, please contact us.
