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International divorce - scenario on marital property in Australia

Q:  I am a British citizen, and have lived in England for the past 12 years, but I am Australian by birth.  My spouse and I both live in England, but we have properties in Australia as well as in the UK. Can I make an application in the English court which can deal with the properties we have in both countries?

 

A:  If you are domiciled in England, or you have been habitually resident in England for at least 6 months prior to the issue of a divorce, then you are entitled to issue a divorce in England, no matter what your nationality is. 

It is likely that the client who asks this question may have changed their domicile to Britain, by making the choice to be a British Citizen.  However, even if they have not, they have been resident for more than the minimum period.

Once a divorce application has been issued, it is open to this person to make an application to the court for financial orders as part of a divorce. A mediator will need to assess that mediation is not suitable.  It is also open to the parties to use other routes to settlement which avoid court litigation. These include Mediation, Collaborative Law or Arbitration. We will advise you about all of these options and help you decide which one is right for you.

You will be advised about providing full and frank financial disclosure to each other (and also to the court if proceedings have been issued) to establish what the assets are.  This will include the disclosure of all property interests, specifying the location and value of each property.

The value of all of the parties’ assets will be taken into account when reaching settlement.  If the parties agree, or the English court decides to make an order relating to property in Australia, in favour of this spouse, then an order will be made. That order is not immediately enforceable in Australia, if the other spouse does not cooperate with either the sale or transfer of the property. 

It is necessary to have the court in Australia make a “mirror” order, which states the same terms.  We would liaise with lawyers in Australia to ensure that the proper orders were put in place.  The English order would stipulate that the parties will cooperate with the lawyers in Australia to ensure that the order is made there.  Once the order has been approved by the Australian court, the order then becomes enforceable in Australia, as if it had been the Australian court which had made the order in the first place. The parties then continue to implement the terms of the original order. 

If you have any questions regarding International Divorce procedures, contact our Family team today! We can assist you with any arising concerns regarding this subject. If you have any other queries, please do not hesitate to contact any of our offices: BanburyBicesterRugby and London

Alternatively, you can contact us directly on 01295 270999. 

 


Please treat the contents of our blogs as general guidance only. Please do not take any action based on their contents unless you have sought specific legal advice. Brethertons cannot accept responsibility for any errors or inaccuracies, loss or damage in circumstances where there is no formal retainer between us and we have not given you personal and specific advice relating to a matter for which you have given us full background details.  You must also bear in mind that the contents of our blogs are based on English Law, and because they contain archival material, that material is likely to go out of date. Therefore, it is important to consider the date that the blog was posted. Please also remember that the law may differ in different Jurisdictions.