I am implicated in an inter-country family law litigation – how does this affect my property settlement?

As globalisation has made the world more interconnected, it is more common for couples to be married to an overseas resident or own property in several countries.

This can convolute divorce settlements as family law legislation from other countries can stipulate competing laws about partner separation and the division of assets.[i]

There can be differing levels of similarity and variation between family law legislation of other countries and that of Australia. In the case of jurisdiction, the matter depends on its own context, the country of legal proceedings and the specific issue being litigated.

The recent High Court of Australia case, Clayton v Bant (2020) exemplifies competing laws regarding the dividing of property between the United Arab Emirates (UAE) and Australia.

The husband and wife were from Dubai and Australia, respectively. They were married in a Sharia Court in the UAE during 2007, had a child in 2009, the husband owned property in Australia, Dubai and globally and the wife owned property in Australia.[ii]

When parties separated in 2013, the Husband returned to Dubai and commenced divorce proceedings in the Personal Status Court of Dubai. The husband was granted a dissolution of the marriage and the wife did not seek property orders within the jurisdiction of Dubai.

In Australia, the wife instituted proceedings seeking parenting, property, and spousal maintenance orders. The husband responded seeking the matter be permanently stayed, yet the Family Court dismissed the application.[iii]

An appeal followed to the Full Court which overturned the previous decision unanimously, citing the wife’s failure to pursue alimony during the Dubai proceedings.

However, special leave was granted for the wife to appeal the case to the High Court, holding that the Dubai Court did not have jurisdiction to make property and spousal maintenance orders.

Additionally, the court found that the Dubai proceedings had no authority to determine a settlement for global property. This juxtaposes Australian family law which makes provisions for all property, within Australia and internationally.

Their honours stated, “The rights created by ss 79(1) and 74(1) (of the Family Law Act) cannot ‘merge’ in any judicial orders other than final orders of a court having jurisdiction under the Act to make orders under those sections.

“The rights of the wife to seek orders under ss 79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted. [iv]

Thus, the wife’s decision not to claim alimony in the UAE could not justify an estoppel in preventing her from making claims in Australia that should have been made at a previous trial. This was because alimony was not shown to be claimable after the date of divorce in the UAE.

Evidently, the conflicting laws of inter-country litigation make matters complicated. If you own property internationally, it is important to recognise the family law legislation in relation to the country where a separation is litigated. If you litigate in a country such as Australia, legislation covers property globally, whereas UAE jurisdiction only deals with property within their sovereign territory.

A circumstance may arise, as occurred in Clayton v Bant, where orders were made for Dubai property, but had not yet occurred for other properties around the world owned by the parties.

Similarly, questions arise related to partners taking children with them overseas following a separation and countries where divorce is illegal such as in the Philippines.[v]

As such, it is clear that jurisdiction is dependent on the specific context and country of your case. Advice can be sought about your multinational legal case from the specialist family law solicitors at Rowan Skinner & Associates Lawyers.

Notes

[i] Parolin, Franca. “Do You Own Property Internationally? Were You Married Internationally? How Does That Affect Your Property Settlement? – Family and Matrimonial – Australia.” Www.mondaq.com, Aug. 8AD, www.mondaq.com/australia/divorce/974468/do-you-own-property-internationally-were-you-married-internationally-how-does-that-affect-your-property-settlement. Accessed 5 Mar. 2021.

[ii] Opal Legal. “High Court Rules on Status of Overseas Divorce – Family and Matrimonial – Australia.” www.mondaq.com, Dec. 14AD, www.mondaq.com/australia/divorce/1016054/high-court-rules-on-status-of-overseas-divorce.

[iii] Ibid.

[iv] Cj, Kiefel, et al. High Court of Australia. Dec. 2AD.

[v] Wibawa, Tasha. “Trapped in an Abusive Marriage in One of the Last Places on Earth Where Divorce Is Illegal.” Www.abc.net.au, 8 Oct. 2018, www.abc.net.au/news/2018-10-09/the-philippines-is-one-of-two-countries-where-divorce-is-illegal/10332600#:~:text=The%20Philippines%20is%20one%20of%20the%20only%20countries%20in%20the. Accessed 5 Mar. 2021.