In these geographically mobile modern times, family law matters often involve couples where one party lives overseas. This raises complex international family law issues in terms of jurisdiction, enforcing court orders, international spousal maintenance or child support, and property settlement issues.
Most court orders made overseas are dealt with by being registered with the International Family Law Section of the Attorney-General’s Department (provided the other country is in our reciprocal jurisdiction – see Schedule 1A of the Family Law Regulations 1984 on the ComLaw website). International spousal and child maintenance obligations, however, are not. Instead, the Department of Human Services (Child Support Agency) is the central authority for the administration of most international maintenance matters and fulfilling the obligations Australia has in relation to international maintenance obligations that arise out of family relationships, parentage or marriage.
International spousal or child support
Parents have the obligation to financially maintain their kids, no matter where they live. So even if your child lives overseas, you will need to pay child support for them. Although it can seem difficult to enforce, international payments which are legally binding can be enforced in countries which have reciprocal jurisdiction to help parents recover child support when the other parent is living overseas or vice versa. Such applications are enforced according to the laws of the country where the paying parent lives. Australia’s reciprocating jurisdictions can be found here.
Some countries are more likely to recognise Australia’s child support assessment than others. Certain countries need their court system to first recognise child support assessments before they can enforce them. If the court doesn’t recognise the assessment, it may make an order for a new amount to be enforced in that country.
Australia’s Registrar can make and continue a child support assessment where the payer resides overseas in a reciprocating jurisdiction, provided that the other parent is a resident of Australia, accept an application for assessment, register and enforce overseas maintenance assessments, agreements and orders, enforce arrears, and more.
When a relationship breaks down with an international context, issues will need to be considered regarding where legal proceedings should take place, how assets will be treated, and how enforceable any Australian agreements are.
Make sure you discuss jurisdictional issues with your lawyer. There may be strategic benefits to filing proceedings in particular jurisdictions, and there may be potential enforceability issues. Consideration should also be given to each jurisdiction’s tax system and the cost of court proceedings.
The Australian courts usually determine matters when the parties are both Australian residents. However, in many countries, the “closest connection” test is used to determine jurisdiction to obtain a divorce order and property settlement. In other words, the test establishes to which country the parties have the closest connection—for example, where they are habitually resident, or where the assets are held.
Depending on the overseas country, the differences between the legal systems could make a difference in determining where the matter should be heard. For example, our de facto and same-sex laws make fair provision for property division, whereas many European countries still have far less rights for de facto or same-sex couples.
If you are a member of an international couple, or some of these issues are likely to affect you and your family, please get in touch so we can give you accurate advice on your situation.
Do you need assistance with an international family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.