International Property Settlements: Separation and Divorce When You Have Assets in Australia and Overseas

Not getting the process started early is particularly problematic for a number of reasons, which we will explore below.

Time Considerations & Time Limits

Time is an important consideration when you have assets both in Australia and overseas. Although it may feel appropriate for one party to take their time, urgency is required, especially considering the current economy. Along with fluctuations and changes in valuations, not progressing the property settlement process can result in your combined asset pool dwindling.

Delaying can present other significant issues, such as triggering a need to sell under the market price instead of at a fair market price due to a need for funds elsewhere. In the international context specifically, it can also be difficult to reverse transactions in different countries, and if you are not acting swiftly, this can mean that it is difficult to preserve the proceeds of any sale. 

Time Limitations in Australia

In Australia, once a divorce is granted, you have only 12 months to finalise your property agreement. For de facto partners who are separated, there is also a time limitation, however you have two years from the date of separation to finalise your property settlement.

Time Limitations in Other Countries

Understanding the time limitations of countries outside of Australia is also incredibly important. For example, the United States and Canada run a system where divorce, separation, property settlement, and parenting are all treated as one issue. This is unlike in Australia, where parenting and property arrangements can commence and be finalised at any point in time from the date of separation. If you have assets in other countries, this may mean that there is a period of time when you cannot actually do anything, which is why it is crucial to understand the timelines of the different countries and seek advice to learn how this will affect your individual process.

Avoid Having To Go Through These Processes Twice

Contributing to many people having to go through proceedings and legal processes twice, is when people are unaware that they should be seeking advice in Australia, as well as in the jurisdiction/s where other assets are held. For example, if you have property in Australia and the UK, then you should seek legal advice in both Australia and the UK. 

There is a perception that assets overseas are unobtainable after a separation. On the opposite end of the scale, there is also a misconception that whatever Orders you may have in place in one country, will automatically be applicable in another. Neither perceptions are one hundred percent true. 

That being said, it is not uncommon for people with property in Australia and overseas to have to revisit their parenting and/or property matters, with dual advice needing to be sought the second time around.

What is certain though, for anyone navigating a property or financial settlement where overseas assets are concerned, is that this is a process that requires urgent attention. Expert legal advice is essential in order to achieve the best possible outcome the first time around. 

What You Need To Know Early On 

If you are yet to begin this process, it is essential you know what assets and liabilities you and your former partner or spouse have here and overseas. This might include superannuation, or Commonwealth pensions, amongst other financial resources. To get a clear picture of all possible assets, speak to a family lawyer about what information is likely to be required or what processes you need to follow to find out about what your assets are and where they are located.

If your family lawyer is not accurately informed of what assets you have, this can muddy the waters and make the process difficult. In our experience, international property settlement matters such as these are usually dealt with in a collaborative manner, so it is crucial for all the facts to be laid out clearly on the table. This means that both lawyers can work together to identify what is recognised in different countries. 

The next step is then identifying how these are owned. Are they owned jointly or solely? In Australia, couples can hold property as joint tenants, although this is different around the globe. It is important to become  familiar with how your assets are held, for example if an asset is held in a trust, or if it is part of a corporation or business. How your assets are held can impact the value of your assets.

Dual Advice 

We know that the thought of seeking dual advice may feel overwhelming, though is essential in international property settlement matters. Having dual advice from lawyers in Australia and overseas who are working together to obtain the best possible outcome for you, means that you can avoid having to deal with any unforeseen issues down the track, and minimises the risk of running into potentially conflicting advice. 

As family lawyers, we have connections with specialist family lawyers in a range of countries, and we are able to assist you in finding the right lawyer if required.

There can be a number of unforeseen circumstances that slow down the property settlement process in international property settlement matters. Considering the property settlement time limitations that exist, it is important to get the process started as early as possible.

With the right knowledge of your assets and legal advice, keeping your international property settlement on track and without significant delays, is entirely possible.