Zubin Kalchuri & Kushal Bhattarai Solicitors ABK LAWYERS

1. Background

In 2013, there were 118,962 marriages registered in Australia. During the same period, 47,638 applications for divorce were granted divorce order from courts. The divorce order figure includes the overseas marriages. Whatever the reason might be, it is always traumatic affair for parties involved, along with their friends and families.

It is not the intention of the article to provide exhaustive advice and should never be considered as the legal advice. It only attempts to provide some information you should know about marriage and divorce.

2. Definition of Marriage

Marriage is defined as “union of a man and a woman to the exclusion of all others, voluntarily entered into for the life”. The legal requirement is that, both parties “shall attain 18 years of age”.

A foreign marriage is generally recognised as valid in Australia if solemnised according to the laws of that country. Nevertheless, same-sex marriage, marriage within a prohibited relationship, bigamy, underage marriage etc. are the exceptions to valid marriage in Australia. Same-sex marriages conducted overseas are considered as de facto relationship.

2.1 Getting marriage in Australia

Anyone who satisfies the above requirements can get married legally in Australia. There is no requirement to be an Australian citizen or a permanent resident of Australia to legally marry in Australia.

Once a man and woman decide to get married, they must give a written notice of their intention to marry to their authorised celebrant at least one month before the wedding. A Marriage Celebrant is a person who is authorised to solemnize marriages anywhere in Australia in accordance with the Marriage Act 1961. Only an authorised celebrant can legally perform the marriages in Australia.

On the day of wedding, the bride and groom sign three marriage certificates. Each certificate then should be signed by the marriage celebrant and two witnesses. The married couple will get one of the certificates as a record of their marriage.

The marriage celebrant then registers the marriage with the registry of births, deaths and marriages in the state or territory it took place within fourteen days. The married couple should apply for the certificate issued by the registry as this certificate is a legal document required for many official purposes.
Whether the marriage taken place in Australia is recognised in another country is a jurisdictional issue and depends on the law and policy of that country. The married couples need to be confirm with their own government authorities which records marriage in that country.

Similarly, there is no requirement for an overseas marriage to be registered in Australia. The Marriages Act 1961 states that the overseas marriage are recognised as valid in Australia if the marriage is valid under the law of that country. The exceptions to the rule is that, the overseas marriage must satisfy the requirements of marriage in Australia.

3. Definition of Divorce

Divorce means the termination of a marriage otherwise than by the death of a party to the marriage. Since 1975, divorce is a determination made without need of or regard to, any fault of either party. Separation occurs if one party leaves with the intention of terminating the marriage, whether or not there was justification for that course. The one and only ground for divorce is that the marriage has broken down irretrievably.

3.1 Where shall the application for divorce be lodged?

In all Australian states except Western Australia, the application for divorce should be filed in the Federal Magistrates Court of Australia ‘FMC’.

In Western Australia, the Family Court of Western Australia or a Magistrates Court sitting at a place outside the Perth Metropolitan Area have jurisdiction to hear applications for divorce.

3.2 Elements for a valid divorce application

To validly apply for divorce, the following elements’ presence is required:

• There is a legal marriage between the parties;
• The marriage has broken down irretrievably;
• The parties separated and thereafter lived apart;
• The period of such separation is not less than 12 months immediately preceding the date of the filing of the application for divorce order; and
• Either of them regard Australia as home or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

3.3 Service on the respondent

If the divorce is initiated by one party then, three copies of application of divorce must be lodged at the FMC registry with prescribed court fee. However, if the application for divorce is initiated jointly, there is no need of third copy. The FMC registers the application and provides the hearing date.

A person who files an application initiating a claim or a cause of action must serve a sealed copy of the application, brochure Marriage, Families and Separation and of any document filed with the application, on other party to the application at least 28 days prior to the hearing date.

The other party must also file a response within 28 days of service. However, if the proceeding for divorce is instituted jointly, there is no requirement of service.

3.4 Hearing and court verdict

The court has discretion as to whether or not the matter should be heard in the absence of parties. The registrar will make a divorce order which becomes final a month and a day after it is made. The divorce order is issued 10 days after the divorce order takes effect to the applicant or his/her solicitor in case the applicant has instructed a solicitor.

Commonly, if there is a child of the marriage under 18 years of age, the applicant must be present to give evidence as to the arrangements for care, welfare and development for the children of the marriage, unless it is a joint application. The child’s best interest is the paramount consideration in respect of parenting orders. Parenting arrangements, property settlement, child support and spouse maintenance are the issues that need to be dealt with before a divorce application is made.

3.5 Recognition of Divorce Order granted overseas

Family Law Act 1975 (Cth) prescribes a divorce effected in accordance with the law of an overseas jurisdiction will be recognised and accepted in Australia if the respondent and the applicant were ordinarily residents in the overseas jurisdiction at the relevant date.

4. Conclusion

Different jurisdictions may have different rules and laws in relation to recognition of marriage and divorce granted overseas. The applicants for both marriage and divorce shall consider the requirements for recognition carefully.

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