Finalising a Divorce When Your Spouse Has Moved Overseas

29 July 2020

In Australia, you and your spouse must be legally separated for twelve months before a divorce can be granted. This legal separation is often accompanied by a physical separation, as in one of the parties moving out of the shared marital home. Just where they move to can pose a few issues when it comes to finalising your divorce. If they remain in the same town, state or even within Australia, then it's generally quite straightforward to serve divorce papers and wind up your marriage. But what about when they have moved overseas following your separation?

Options and Complications

Your spouse's overseas relocation can grant you additional options when it comes to divorce, and yet these options come with certain complications. You might wish to explore the possibilities of completing the divorce in your spouse's jurisdiction (the country in which they're a citizen or permanent resident). In some instances, this will be fairly straightforward, but it depends on the prerequisites for divorce in said jurisdiction, and this can vary significantly. This option might be of particular interest if the financial terms of divorce are more favourable in your spouse's jurisdiction.

Additional Issues to Consider

While you certainly have the ability to pursue divorce in a foreign court, there are additional issues that must be considered before proceeding:

• You will need to engage lawyers in this foreign jurisdiction to finalise the divorce on your behalf.
• You must find out if your physical presence will be mandatory at any stage of the proceedings. The process becomes more difficult when international travel is required.
• When the jurisdiction's language is not English, you will require language assistance and professional translation of all applicable documents from the foreign jurisdiction.

Applying from Australia

It might be that it's far more straightforward to apply for divorce in Australia, as opposed to pursuing the matter in a foreign country. You can serve divorce papers from Australia to your spouse in their home country, and the matter can be settled in Australia. If you should encounter difficulties in actually locating your spouse, you may need to apply for an amended or substituted service, provided you have made every reasonable effort to locate your spouse. 

Just because your spouse has left Australia, it doesn't mean that you will be left in limbo with your plans to divorce, but you need to think carefully about the best place to complete the process.