Australia Divorce and Overseas Property : What you need to Know

31 August 2025 in Family and Divorce Law | 5 min read | skip to FAQs

This article outlines Australia’s recognition of overseas marriages and divorce. In particular, what the Federal Circuit and Family Court may consider when making orders for overseas properties during divorce proceedings.

Definitions

Marriage is defined as the union of 2 people to the exclusion of all others, voluntarily entered into for life, pursuant to section 5 of the Marriage Act (1961) (Cth)(‘MA’). It is a legally binding declaration of a social practice that immediately changes the rights and responsibilities of an individual.

Divorce is defined as an irretrievable breakdown under section 48 of the Family Law Act (1975) (Cth)(‘The Act’).

Australia’s Recognition of Overseas Marriages

Following the ratification of the Hague Convention on the Celebration and Recognition of the Validity of Marriages 1978, Part VA of the MA deals with foreign marriages. Section 88C(1) and section 88D(1) of the MA recognises foreign marriages that has been solemnised under the local law of another country to be valid in Australia. There are other requirements set out in this section, including compliance with formal documentation and the presence of a diplomatic or consular officer at the time of solemnisation. It is important that parties are aware of the local laws and abide by the formalities as it could affect the recognition of marriage in Australia.

Prohibited marriages in Australia

The Marriage Act 1961 (Cth) states that Australia will not validate an overseas marriage if it contravenes any Australian legislation. This includes:

1. If either party is not of marriageable age;
2. The absence of legal consent;
3. Polygamous marriages;
4. Bigamous marriages or
5. Marriage with a close family member.

What if there were no local laws?

If there are no clear local laws, the marriage may still be valid under common law in Australia if it was documented, witnessed, vows were exchanged and before an ordained priest. However, it is still important that the marriage does not contravene Australian law.

Overseas Divorces

Firstly, to file for a divorce, the marriage must be recognised in Australia. Once confirmed, to apply for a divorce at least one party in the divorce proceeding must:

1. be a citizen of Australia
2. domiciled in Australia or,
3. of ordinarily reside or has been residing for 1 year immediately preceding that date in Australia.

The grounds for divorce are set out in section 48 of the Act and call for an irretrievable breakdown of the marriage. Parties can submit a sole or joint application and must comply with the formal requirements set out in Part VI of the Act. Requirements include:

1. A 12-month continuous separation period and
2. There is no reasonable likelihood of reconciliation,

Once finalised, the divorce takes effect 1 month after making of the order by the court under section 55(1) of the Family Law Act 1975 (Cth).

Do I need to supply a marriage certificate to apply for a divorce?

When submitting an application to the Court, parties must provide a marriage certificate. If the certificate is not in English, it will need to be translated into English and submitted with an affidavit translation of marriage certificate.

Will Australia recognise divorce proceedings that took place in another country?

A divorce proceeding that has been validated within an overseas jurisdiction, in accordance with their laws, is recognised in Australia under section 104 of the Act. Either party must comply with the qualifying connections of the overseas jurisdiction for Australia to recognise the divorce.

Overseas Property Settlements

Can Australia make orders for overseas property during divorce settlements?

In many divorces, property division is a necessary part in striving for a fair distribution of assets. Settlement can occur through the options of:

1. A binding financial agreement,
2. Consent orders or
3. Litigation

If you have property overseas, settlement can become much more complex due to jurisdictional issues. Section 31 of the Family Law Act 1975 (Cth) outlines the Family Court’s jurisdiction, allowing the Court to hear all matters related to family law, including overseas property. In addition, section 79 of the Act specifically considers the division of property between divorcing parties, including overseas assets. Considerations of the Court comprise of:

1. Jurisdiction
2. Valuation of the property
3. Enforcement and legal challenges
4. Treaties and international agreements

The Act provides a wide application of powers when dividing property in divorce settlements, however due to enforceability and compliance issues, the Court will be cautious in making orders.

Can Australia enforce these orders in other countries?

Within the boundaries of the Australian border enforcing orders can be simple, however depending on the other country’s laws and regulations, compliance of orders can become increasingly difficult. The concept of state sovereignty means that other countries are not bound by Australian orders and have no obligation to accept the judgement. This allocates the responsibility to the individuals involved but cannot necessarily secure the application from the overseas legal system.

With consideration of on the type of order and the context, you may be able to rely on the bilateral treaty called Reciprocal Recognition and Enforcement of Judgements in Civil and Commercial Matters 1994 with the United Kingdom. This treaty confers mutual recognition and enforcement of judgements between the United Kingdom and Australia. In order words, if the overseas property is located in the United Kingdom, orders that have been made in Australia can be acted on.

Are orders made overseas applicable in Australia?

With consideration of the Foreign Judgements Act 1991 (Cth) (‘FJ’) and the Foreign Judgments Regulations 1992 (Cth) (‘FJR’), overseas orders may be enforceable in Australia. The country must have formal reciprocal arrangements with Australia, and if they don’t, parties can rely on common law principles. However, despite the country of origin, court orders that are made regarding property division must be dealt with common law procedures. The FJ or FJR cannot be relied upon.

How can BSM Sydney Lawyer assist you?

The experienced family lawyers at BSM Sydney Lawyer have decades of experience and can assist you in all aspects of family law. We have experience with overseas marriages and divorce, including overseas property settlements. We understand that divorce proceedings can be an emotional and stressful experience for clients and approach all matters in a collaborative and respectful manner. Our family lawyers work hard to achieve the best outcome for you and your family. The senior family lawyers at BSM Lawyer Sydney offer a free 20-minute consultation to assess your individual situation.

[phone-number-contact]

FAQs

BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.