Getting an overseas divorce does not protect your property from a property settlement claim by your former partner in Australia.
What are the time limits for a property settlement in Australia?
Section 44(3) of the Family Law Act 1975 (‘the Act’) states that the matrimonial property proceeding shall not be instituted, except by leave of the court/consent of the parties, 12 months after ‘the divorce.’
Section 44(5) of the Act states that de facto property proceedings shall not be instituted, except by leave of the court, 2 years after the end of the de facto relationship.
Section 44(4) (matrimonial) / s 44(6) (de facto) of the Act deals with when the Court may grant leave to proceed out of time (hardship).
Overseas Divorce and application out of time for property settlement
In Anderson & Mcintosh  FamCAFC 200, leave was granted to the Wife to proceed with her property settlement application as the Court held that a foreign divorce does not constitute a divorce order under the Family Law Act 1975.
This matter concerned a divorce which had taken effect overseas on 28 December 2010. Orders for property settlement were made overseas in relation to foreign property, but not in relation to property situated in Australia. The wife filed an application in Australia seeking orders for property settlement almost 18 months after the (foreign) divorce.
The Wife submitted and it was accepted by the Court that section 44(3) had no application to a foreign divorce.
The Court said that no part of the Act including definition of ‘matrimonial cause’ would lead court to the conclusion that the term ‘divorce order’ should apply to divorces obtained overseas. The Court noted that ‘divorce order’ is a term used consistently in Family Law Act 1975 in reference to terminating marriage under the Family Law Act, and therefore clearly limited it to Australian divorces only.
Key lesson regarding overseas divorces
While overseas divorce may be recognised by the Australian Courts (see our article on The Validity of Overseas Orders, for more information), it is not factored into the 12 month time period within which to commence property settlement proceedings, which applies only to a Divorce Order obtained in Australia.
Have you obtained a divorce overseas and wondering how to protect yourself?
Contact us to book a reduced rate initial consultation with one of our Brisbane Family and Divorce law experts, for a confidential discussion about your individual circumstances.