Time Waits for no Man: But does for Foreign Divorce
Filing claims for property settlement and spousal maintenance must usually occur within certain time limits. However, if you were divorced overseas, these time limits will not apply.
A Divorce Order made in Australia takes effect one month after it is made. From that date, you have a 12 month period within which to file for property and spousal maintenance.
As you cannot obtain a divorce until you have been separated for 12 months, the Act effectively allows two years for making financial Applications.
Once the period of 12 months has lapsed, from the Divorce Order becoming final, the Court will only in limited circumstances (set out in section 44(4) of the Family Law Act) grant permission for financial proceedings to be commenced.
In the recent case of McIntosh v Anderson, the Court found that leave to proceed out of time was not required in the case of a foreign divorce.
Facts of the Case
- On 28 December 2010, an Order was made in an unspecified foreign country granting a divorce between the husband and wife;
- At the time of their divorce a Division of Property Order was also made pursuant to the law of that country. This only related to their property within the jurisdiction of that country;
- No Order had ever been made dealing with their Australian property;
- On 10 July 2012, the wife filed an Application in Australia seeking orders for property settlement under the Family Law Act;
- Although more than 12 months had expired since the divorce, there was no Application by the wife for leave to proceed out of time, as she contended that section 44(3) of the Family Law Act did not apply to a divorce pronounced in a foreign jurisdiction;
- The husband argued that she did require the leave of the Court to commence the Application as it was out of time.
Findings of the Court
- Leave pursuant to section 44(3) is not required in the case of a foreign divorce;
- The expression “Divorce Order” used in that Section is confined to Orders for divorce obtained in Australia pursuant to an Application under the Family Law Act;
- The wife had brought the Application for Property Settlement properly and did not need the leave of the Court.
If you were granted a divorce overseas, the usual time limits for filing property settlement and spousal maintenance claims do not apply.
This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.
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