When a couple gets married overseas and subsequently separates, it is not uncommon where the parties have lived in multiple countries, for one of the parties to return to Australia after divorce and family law proceedings have been finalised and overseas orders have been made.
A question that is commonly asked of us is ‘is my parenting order/marriage/divorce order valid in Australia?
In order for family law orders made overseas to be recognisable and enforceable in Australia, the orders need to be registered in Australia.
Is my overseas marriage recognised in Australia?
Recognition of marriages performed overseas is provided for in Part VA of the Marriages Act 1961, which gives effect to the 1978 Hague Convention on Celebration and of the Validity of Marriages.
A marriage solemnised outside Australia will be recognised as valid in Australia if at the time it was solemnised, or at the time that its validity falls to be determined, it was:
- recognised as valid under local law; or
- if it was performed by a diplomatic or consular officer of another country, it was at the time it was solemnised, recognised as valid under the law of that foreign country and not prohibited by local law: s88C and 88D.
The only exceptions where the marriage will not be recognised as valid are where:
- either of the parties were at the time of the marriage, lawfully married to someone else (i.e. that marriage is recognised in Australia)
- if one of the parties was domiciled in Australia and either of them were under 18;
- The parties are within a prohibited relationship within the meaning of s23B (e.g. mother, father, grandmother, grandfather, brother, sister, child, adopted child);
- the consent of the parties was not real consent (e.g. consent obtained by duress or fraud): s88D.
Is my overseas divorce order recognised in Australia?
Under section 104 of the Family Law Act, an overseas order for divorce may be recognised as valid in Australia if either or both parties satisfy certain qualifying connections (‘the residency requirements’) with the overseas jurisdiction, including as follows:
- The respondent was ordinarily residing in the overseas jurisdiction; or
- The applicant was ordinarily residing in the overseas jurisdiction for at least 12 months at the time of the commencement of the proceedings; or
- The overseas jurisdiction was the last place of cohabitation of the parties; or
- Either or both of the parties were domiciled in or nationals of the overseas jurisdiction
There are common law rules of private international law that apply to divorce, such that even where the above residency requirements are not met, a divorce order may still be declared valid in Australia. The common law test for determining validity of the divorce is whether a party has a real and substantial connection with the foreign jurisdiction where the order was made.
Section 104 also allows for the refusal to recognise divorce orders made overseas even where the residency requirements are met if the order would not be compliant with those common law principles, including where one party had been denied procedural fairness, or where recognition of the order would be manifestly contrary to public policy.
Does my overseas divorce order protect me from a property settlement?
Whilst an overseas divorce may be recognised in Australia, s44(3) of the Family Law Act does not recognise an overseas order for divorce as a ‘divorce order’.
This means, the overseas divorce order 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, and the overseas divorce therefore does not affect your right to pursue a property settlement with your former partner in Australia.
In effect, permission from the Court to file an application for property settlement in Australia is not needed where it is made more than 12 months after a foreign divorce.
For more information on this topic, see our article: Impact of overseas divorce on property settlement.
Are my overseas orders for my child recognised in Australia?
The recognition and enforcement of overseas parenting orders can be problematic.
Foreign parenting orders are not automatically recognised in Australia.
Under s70G of the Family Law Act, an ‘overseas child order’ may, in accordance with the Family Law Regulations 1984 (‘the Regulations’), be registered in Australia, and upon registration, it has the same force and affect as if it were an Australian order: s70H.
However, in reality, this section creates limited capacity for the registration in Australia of overseas child orders as s4 of the Family Law Act defines an ‘overseas child order’ as:
‘An order made by a court of a prescribed overseas jurisdiction‘
Under s4, a prescribed overseas jurisdiction means any country or part of a country that is declared by the Regulations as a prescribed overseas jurisdiction.
The list of countries and states (prescribed overseas jurisdictions) that Australia has agreements with, so as to allow those parenting orders made in those jurisdictions to be registered and recognised as valid in Australia are limited to those set out in Schedule 1A of the Family Law Regulations 1984. If you have overseas orders that were made in a place other than the countries listed in Schedule 1A, you will need to obtain a new parenting order as your current parenting order will not be enforceable in Australia.
Registering an overseas order regarding a child
If your parenting order has been made in a prescribed overseas jurisdiction, pursuant to Regulation 23, it can be registered in Australia by sending it to the Secretary of the Attorney General’s Department. You must provide the Attorney General’s Department with:
- a certified copy of the parenting order from the prescribed overseas jurisdiction; and
- a certificate signed by an officer of a court (or another authority relating to the order) stating that at the date of the certificate, the order is enforceable in that jurisdiction.
You must also satisfy the Secretary that one of the following persons is ordinarily resident in, present in, or proceeding to, Australia:
- the child who is subject to the order;
- a parent of that child;
- a person who has the right to have the child live with them;
- a person who has the right of custody of or access to the child, or the right to spend time or communicate with the child.
After receiving such a request, the Secretary must send the documents to a Registrar of the Family Court of Australia, State Family court or State or Territory Supreme Court upon receipt of which, the orders will be registered by filing the certified copy of the order and the corresponding certificate with the Court.
As stated above, once the overseas order is registered in Australia, it has the same force and effect as if it were made in Australia: s70H Family Law Act.
Effect of Registration on Exercise of jurisdiction
Upon registration in Australia of an overseas parenting order, an Australian Court may not subsequently make a parenting order for the child concerned unless:
- each person who has rights under the order consents; or
- the Court is satisfied that there are “substantial grounds for believing that the child’s welfare requires that the court exercise jurisdiction in the proceedings:” s70J.
Even then, if either of the above two requirements are satisfied, the Court must not make an order unless it is satisfied that:
- the welfare of the child is likely to be adversely affected if the order is not made; or
- there has been such a change in circumstances of the child since the order was made that a parenting order ought to be made.
If you are wanting more information on this topic, we suggest you check out the following articles:
- Impact of overseas divorce on property settlement.
- Parental Child Abduction – Hague Convention Proceedings
- Rights to return of my child if taken to a Non-Hague Convention Country
Has this article raised questions for you regarding your overseas orders?
Contact us to book a reduced rate initial consultation with one of our Brisbane Family and Divorce law experts, to have a confidential discussion about your individual circumstances.