We got married in another country, can we get divorced in Australia?

If you were married overseas, you may be eligible to have your Application for Divorce (‘application’) heard in Australia provided you meet certain conditions.

What is important is that you or your spouse falls into one of the following categories:

  1. regard Australia as home and intend to live indefinitely in Australia;
  2. are an Australian citizen by birth or descent;
  3. are an Australian citizen by grant of citizenship; or
  4. ordinarily live in Australia & have done so for at least 12 months.

If you or your spouse satisfy one of the above, you may be able to have your divorce heard in Australia. There are other steps required in an Application, that can be found here.

Please note that if your marriage certificate is in a language other than English, you will need to have it translated as a part of your Application. This needs to be conducted by an accredited translator.

If you currently have family law proceedings on foot in another country please consult your lawyer in that jurisdiction in relation to filing for divorce in Australia.

Is my marriage recognised in Australia?

In order to get divorced in Australia you are required to have had a valid marriage under the Marriage Act 1961.[1]

There is a requirement that the marriage is considered valid under the law of the country you were married in and it is not prohibited by law.

Same sex marriages that were conducted overseas are valid if they comply with the conditions of the Marriage Act 1961 even if the marriage took place prior to same sex marriage becoming legal in Australia.

There is also a possibility that the marriage might be seen as invalid in Australia for one of the following reasons:

  1. if one of the parties were already married when the marriage occurred;
  2. where one of the parties was living in Australia at the time of the marriage and they were not of marriageable age (being 16 years of age);
  3. it is a prohibited relationship; or
  4. one of the parties couldn’t give real consent because the consent:

a) was obtained by duress or fraud; or

b) a party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

c) a party did not understand the nature and effect of the marriage ceremony; or

d) either of the parties is not of marriageable age.

What if I can’t find my marriage certificate as we were married overseas?

It is a requirement that you provide a copy of your marriage certificate to the Court as a part of your Application. If you do not have a copy of your marriage certificate then you must take all reasonable steps to obtain a copy including contacting the embassy of the country you were married in, the births, deaths and marriages registry equivalent of that country or the celebrant of your marriage and all other avenues possible.

If you are still unable to obtain a copy then you the Court requires an affidavit  setting out all the steps you have taken to try and obtain it with an undertaking that if it is found then you will provide a copy to the Court prior to the divorce hearing.

Can I obtain a divorce in Australia without the other person signing if they cannot be located or are overseas?

The other party does not need to sign the Application for divorce if it is a “sole” Application.

There is a requirement that once an Application is filed that it is served on the other party. Applicants are required to do this within 28 days if their spouse is in Australia and within 42 days if their spouse is located overseas.

There are instances where parties may be unable to locate their spouse in order to serve the documents on them. The court requires that all reasonable steps are taken to locate your spouse. This can include various searches and enquiries with people that may know your spouse’s location.

If all avenues have been exhausted then you can apply for an order to dispense with the requirements of service or for substitute service (an alternate method of service designed to bring the Application to the attention of the other party) in order for the Court to grant a Divorce Order.

If you are unsure about your eligibility to apply for a Divorce in Australia or you are having trouble serving your former spouse, please contact Carew Counsel Solicitors so that one of our family lawyers can assist you.

[1] Marriage Act 1961 (Cth), s 88C.


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