Divorce - Expat Australian Property Settlement and Maintenance Issues
Provided that an application is filed within 12 months of a final divorce order or within 2 years of the date of separation between de facto partners and complies with the legislation, the Federal Magistrates Court and the Family Court of Australia have jurisdiction to deal with property settlement applications and spousal maintenance applications. This is subject to either party in the marriage being an Australian citizen, ordinarily resident in Australia, or present in Australia at the "relevant date" - which is the date on which the proceedings were filed in Court or the date when the application instituting the proceedings was actually made.
Australian Courts do have jurisdiction to deal with property and spousal maintenance applications despite the fact that the parties may not be in Australia at the time, as long as they are Australian citizens. However, there can be major difficulties in enforcing court orders against property in overseas countries. The Court has jurisdiction over the people but not over fixed property unless that fixed property is within Australia.
Independent legal advice should be obtained before taking any steps at all in respect of these matters and relatively few Australian family lawyers have experience with international matters; please contact us using the Inquiry form at the bottom of this page if you would like to engage a qualified family lawyer to provide advice in your circumstances. You will receive a fee quotation in advance of any advice or services being provided.
The ubiquity of superannuation in Australia means that it now features as a consideration in almost all divorce settlements involving Australian citizens and permanent residents.
Note that superannuation trustees in Australia will not "split" without an Australian super "splitting order", or alternatively a binding financial agreement (BFA), in place. How this is best managed in individual situations involving overseas divorces should be the subject of a discussion with an Australian family lawyer.
Also, the splitting or re-allocation of interests in an offshore pension fund or other asset may have tax implications for Australian residents and these need to be clearly understood in advance, so that any split is both tax efficient and equitable on a before and after tax basis.
Restrictions may also apply in relation to any transfer of title involving Australian real property - as a consequence of a divorce or will - if the recipient is a foreign non-resident. Note that prior tax advice will almost always be advisable in these situations.
In terms of foreign pension funds, they can be extremely valuable and will typically be included in any examination of divorce assets, but their valuation can be complex; particularly where pensions haven't vested and defined benefit schemes are involved.
If you would like to arrange professional advice please complete the Inquiry form below providing details and you will be contacted promptly. You will receive a fee quotation in advance of any advice or services being provided.
