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Are Overseas Assets Included in Australian Property Settlements?

By 9 October 2018Family Law
property settlements and overseas assets

To borrow a line from an old Disney favourite, “It’s a small, small world”, and in the 21st century that sentiment is more accurate than ever. The Internet provides global news and information 24/7. Social media makes it easier for friends and families separated by thousands of miles to keep in touch. It also increasingly facilitates relationships between strangers from different countries.

But what happens when a marriage between an Australian and someone from another country ends in separation or divorce? Or more accurately, what happens to the foreign assets?

For starters, let’s see how the Full Court of the Family Court of Australia has ruled on this issue. In a recent case, Anderson & McIntosh (2013) FLC 93-568, the people involved were married in Australia in 1988, but had lived abroad (in country X) since 2006. They were still living in country X when they were legally separated in 2009. They also got divorced in country X in 2010. Afterwards, they obtained property settlement orders pertaining to their assets in country X. However, they didn’t receive any such orders for their Australian property.

In this matter, a ruling on an application for property orders under the Family Law Act 1975 established that whenever anyone going through separation or divorce has property in more than one country, they must seek and obtain property orders in each place (country) where they have assets/belongings. In other words, if you have property here and elsewhere, you must seek separate property orders based on the laws of each country. This is because foreign countries don’t necessarily recognise orders issued by Australian courts.

Further Considerations

In relation to international divorce or property orders overseas, here are some other things to keep in mind:

  • If you were married here but are living overseas, you are legally classified as an expatriate of Australia. This means that you are allowed to file an international divorce in both countries.
  • If you got married here, but are separating or considering an international divorce in another country, it may be better to get divorced in Australia rather than in a foreign country. The key standard that must be met to obtain a divorce in Australia is that you have been separated for no less than 12 months.
  • In the event that one of you kept your Australian residence, lived here at any time within the 12-month period, or considered Australia as your home with the intent to live here most of the time, the divorce and property settlement could fall within the purview of the Australian Family Courts.
  • In Australia, there is a 12-month deadline for making an application for property settlement with the Family Courts after the date of divorce. Because this deadline may be different in other countries, you should seek legal advice about your options as soon as possible.

Furthermore, it doesn’t matter where you have property overseas. In accordance with Australian law, you must make your former partner aware of the holding/s during the property settlement process. This is called disclosure and failure to share the required information can have serious consequences. For instance, if the Australian Family Courts have the authority over the settlement process, it may force them to scrap a final property order and start from scratch. Conversely, disclosing the information as required by law will help the Australian Family Courts issue a final order that is fair to everyone involved.

The Need For Expert Advice

On a related note, there are several circumstances in which it may be necessary to seek advice from qualified financial and legal professionals. For example, you may want to get an independent assessment if you and your ex-spouse disagree on the worth of a foreign asset. If you have significant assets in a foreign country, you should also consult accountants or tax advisers about the potential foreign and domestic ramifications stemming from a property settlement. Finally, you may need to enlist the help of relevant professionals in the foreign country to ensure that Australian court orders can be executed.

Even in a best-case scenario, divorce and separation are acknowledged as two of the most stressful life experiences one can go through. And although divorce and separation in Australia is fairly straightforward, any emotional upheaval during this time puts you at risk of making costly and unpleasant mistakes. As we have noted, even the unintentional failure to share information about a foreign asset can result in the denial of a settlement or invalidation of a final order, forcing you to go through the entire property settlement process again.

On the other hand, the best way to avoid unnecessary complications is to get the proper legal advice as soon as possible. If you are considering divorce or separation and you have any sort of property overseas, phone us to schedule a consultation today.