In Australia, one-third of the population is the first-generation immigrants.
Even you are born in Australia, you most likely have some international ties, such as overseas family connections, or work abroad, or choose to live overseas as expats. So, the chances are you might have some assets allocated in more than one country.
Immigrants and Divorce
If one or both parties in a family relationship considers that their relationship has irretrievably broken, then considerations will eventually turn to divorce.
with cross-border assets
For immigrants, divorce may be associated with a split of assets or relocation between countries. If either the party or assets are located in different countries, The application of the law in one country may not be effective.
Divorcing with international assets is a complex and highly specialised area. It takes bespoke fact-specific legal advice at the earliest opportunity for the best resolution.
Where to Get Divorced When You Have Cross-border Assets?
When beginning a divorce, you don’t necessarily need to seek a divorce in the country where you are residing. There is often a choice of countries which would accept your application for divorce.
You must remember, choose an unsuitable jurisdiction for a divorce petition can have a detrimental effect on the wellbeing of you and your child and your assets.
The Principals When Choosing A Country or Place to Divorce
The jurisdiction dictates the results
Divorce with cross-border assets will primarily be affected by the law of jurisdictional that the assets are located.
Divorce in one jurisdiction may result in a vastly different outcome than a divorce in another jurisdiction because the law in each jurisdiction dictates the outcomes.
If a divorce took place in the courts of China, the prenuptial or marriage agreement is followed regardless of parties’ current situations. By way of contrast, in the Court of Australia, the Courts have broad discretion to redistribute assets and income irrespective of the source or strict legal ownership.
Adultery is the grounds for divorce countries like China but not so in Australia. The party that committed adultery might bear the stigma of immorality which could cause the loss of financial bargaining power in the divorce settlement in China, but this is not the case in Australia.
Enforceability dictates the final settlement
When choosing the country for your divorce, you must consider how the divorce settlement is enforced. Without enforcement, the divorce and property settlement order will achieve nothing.
The recognition of a Court order from a foreign jurisdiction is a complex topic and procedures are very from country to country.
The Australian divorce order might be recognised in China only when the Court has notified the defendant before proceeding. Chinese courts do not accept any financial settlement order from the court of a foreign country.
Divorcing at the place where most of the assets are located, is the most convenient choice. This could help you to avoid the enforcement difficulties if you had a dispute over the asset or income.
Although there is a possibility of bringing a debt claim in a country where most assets are located if you have an order from different country, you must contact our specialist for specific advice.
Competing interests must be weighed
Often the financial aspect of divorce is just one element of the overall divorce settlement.
Additional competing factors must be weighed against each other when choosing the place for your divorce. Some of those factors are strictly legal, and others are not legal, but equally valid factors may be at play.
the parties may prefer to proceed in Australia jurisdiction because Australia is notoriously known as the ‘divorce capital’ of the world, as a result of the generous financial awards made for wives, including lengthy periods of spousal support.
Sometimes the proceeding of divorce may affect the visa status of the party if you choose the wrong jurisdiction to divorce. For example, you are divorcing your non-Australian citizen wife in Australia. As soon as you are divorced, your ex-wife’s Australian visa might be cancelled. You don’t want your ex-wife to end up losing her visa rights if you have a child involved.
Court Attendance for Your Divorce?
Whether you need to attend the Court proceedings for your divorce, depends on where the divorce is filed and whether the divorce petition is in disputes.
If a divorce petition is not defended, then obtaining a divorce is a paper-based exercise which a Judge will deal with without the attendance of either party.
If your spouse does contest or defend the divorce petition, it is usually following negotiations.
In the event you and your spouse cannot reach an agreement, then you may both need to attend court to give evidence. Then following the giving of evidence and the legal argument, the Judge will decide if the divorce can proceed.
Even if you were married yesterday, you are entitled to apply for divorce today without attending to the court, provided both parties agree to the divorce, and there are no children involved.
The tricky part of divorcing in China comes where the divorce is against the will of either spouse. The Chinses court will have a short hearing and encourage self-negotiation, which requires attendance to the court. Only when the negotiation fails, the divorce may be granted with or without your presence in the court.
When there are assets or child custody involved, you must attend the court for a hearing if you don’t want to be disadvantaged. China is not the signatory country of the Hague Convention on the Civil Aspects of International Child Abduction. You have no protection from kidnapping the child by one party. The court is not particularly friendly with a foreigner when it comes to the split matrimonial assets.
Every country has their specific family law and procedures when it comes to divorce. We advise on the full range of family law issues, for expats/immigrants who are married or separated, for same-sex couples, for those are considering marriage and wanting to protect their wealth, and forthose with children.
What to Achieve in Term of Money?
When there is a dispute between parties with different nationalities, it will become a challenge.
Ideally, you and your spouse can try to reach a financial /child settlement outside of court. If it is not possible, you may have to issue a court application for financial remedy proceedings. The child support issues are dealt with differently in each country. One country might deal with it through child support, and the other country might deal with it through the Court. Nevertheless, a divorce with cross-border issues will make the process more complicated.
Financial settlements in Australia
The general principles for a court to settle financial disputes in Australia are based on:
- Working out your assets and liabilities, including real estate, motor vehicles, household items, cash, investments and other assets. Also included are any debts you owe, including mortgages, car loans, personal loans, credit card debt and other debts.
- Looking at the contributions made by both parties during the marriage or relationship including wages and salaries, gifts and inheritance, and assistances to the welfare of the family, such as in the role of parent and the homemaker.
- The future needs of the parties taking into account such things as age, health, care of children, income and financial resources of the parties
- At the final hearing in court, the judge concentrates on the available assets and income, the needs of both parties and any children and how the assets and income can be used equally to meet those needs.
Financial settlements in China
correctly drafted prenuptial agreements or marital agreements will be followed by the Court of China. Where the parties do not have a premarital or marital agreement, the Chinese court will generally respect a mutual agreement concerning family assets and maintenance that has been reached between the parties. If an agreement cannot be reached, the Chinese courts will impose orders to divide assets, provide support for any children, and set out arrangements for the children’s care.
What to Achieve in Child Support
In Australia, the child support issues are most likely dealt with by a child support agency (Department of Human Services) or by the court if the child is over 18 years old.
The primary considerations when deciding on parenting arrangements in Australia include:
- The benefit to children of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence.
In China, the main principle followed by courts is that the ‘children’s best interests’ must be taken in to account.
With the contested divorce proceeding, parents are required to file evidence in support of their application for child custody. The child support issues in China are mostly dealt with by the court.
Legal Advice for Immigrants in Divorce
Every country has its specific family law and procedures to be followed, often those law or procedures are conflicted. The decision in choosing the method and place to divorce could be difficult.
If you are an immigrant and confused with the daunting task in your divorce, we invite you to speak to our experienced lawyer for the best strategy applied to your situation.
Or, you might just want to know a more on how to solve the family conflicts, then refer to the Ultimate Guide for Immigrants to solving Family Conflicts for the essential guidance.