Separating While Overseas but Have Assets in Australia?

When couples who have accumulated assets in countries other than Australia decide to separate, it is important to understand that a Court in other countries may take a differing approach to family law disputes than here in Australia.

We have worked with a number of Australian citizens going through separation or divorce with international intricacies, including a significant number of individuals who have lived and worked or are living and working, in a variety of nations.

When separating, the Family Law Act applies here in Australia but if orders drawn up here in Australia that are not enforceable in another country, it can be problematic.

Property Settlement

If you have assets in Australia as well as in another country it is important to get advice in both jurisdictions. Here in Australia you can deal with assets overseas but we recommend our clients also seek advice from a lawyer in the country those assets are held. We regularly source lawyers from other jurisdictions to assist our clients and work in conjunction with lawyers overseas so our clients can be confident that any orders made are enforceable in both countries.

If you have assets in Australia as well as in another country, some relevant considerations that need to be taken into account are:

1. Whether the Family Court or the Federal Circuit Court of Australia have jurisdiction to determine the case
2. Is there a foreign jurisdiction that would also be able to determine the case?
3. Are there any advantages or disadvantages to the case being heard in a jurisdiction outside of Australia?
4. If you proceed with sorting out your property settlement in Australia, is an Australian judgment or court Order going to be able to be enforced in the other country where the asset/s are held.

It is common for people who have worked in the UK to have a pension – unlike the Australian pension but rather similar to how superannuation works for us here in Australia. As these fund amounts are taken into consideration when undertaking a property settlement, it is important to seek advice in the UK about this regardless of whether you are still in the UK, have moved back to Australia or are living abroad. Some overseas superannuations funds will required an order from the nation they operate in before releasing funds for a property settlement. This is a common example of where two sets of orders need to be made for them to take effect.

Even if all of your assets are in another country it is wise to seek advice in the country you reside in, just to confirm before you proceed with any agreements. Both your lawyer in Australia and your lawyer in the other country can liaise to ensure that any agreement reached will be enforceable.

Parenting Arrangements

If you have children and separate overseas, it is very important to seek advice from a Family Lawyer immediately. If you wish to return to Australia you will need to ensure you do not breach any laws of the country you have been residing in.

Where there are issues with children being taken by one parent to another country without the others’ consent, the Hague Convention, an international agreement that exists between signatories, can be enforced. This international agreement covers international parental child abduction. Generally speaking it provides a method to ascertain which country the child custody case will occur.

If one parent leaves a country which is the child’s habitual residence, without the other party’s consent, and travels to another country that is a signatory to the Hague Convention, the parent and child will be ordered to return. The dispute will take place in the country in which they are habitually residents.

What can be difficult to ascertain in these cases is whether there was initial consent from the other parent to take the children with them. It is for this reason that if you separate while living overseas, any immediate consent to travel or return to Australia with the children should be in writing. Although unenforceable, if the issue of consent later becomes an issue, this can be used as evidence of leaving a country leaving with consent. This is relevant even when a separation seems amicable. We see amicable separations become no longer amicable for one reason or another so we strongly encourage having written consent to avoid being ordered to return

Who do I speak to first?

For both property and parenting orders you may not require a lawyer to represent you in multiple jurisdictions but we recommended that clients seek advice in each of the countries you have assets in or reside.

We work with clients to do this. If you are in need of a lawyer in another country, we have a network of lawyers we liaise with regularly in different parts of the globe and refer our clients to. After speaking with both lawyers, you will be aware of which country you would best to engage a lawyer in, and to draw up orders. In the second country, that lawyer would not be engaged to draw up orders but instead may be engaged to consider the agreement and recommend amendments to the orders to ensure it will be enforceable in both jurisdictions.

Although our Courts have a general power to make property adjustment orders in relation to assets outside of Australia, there are often technical issues as to whether that order can be enforced, how to implement it and whether there are any tax implications. It is wise to seek advice from both jurisdictions so you can make a decision to apply to the Courts in whichever jurisdiction is best for you.