When an overseas divorce is recognised
Section 104 lists the connections that work. Put simply, the divorce is recognised if, when the overseas proceedings started, the person who applied (or, in some cases, the other spouse) was ordinarily resident in that country, was domiciled there, or was a citizen or national of it — and some further combinations set out in the section. Australian courts also recognise overseas divorces that would be recognised under common law rules, which cover most genuine cases. The divorce must be effective under the law of the country that granted it.
When it is not recognised
Recognition can be refused if a spouse was denied natural justice (for example, never notified of the proceedings and given no chance to be heard), or if recognising the divorce would be manifestly contrary to public policy. Divorces obtained without any real connection to the country ("divorce tourism"), or where the documents are not genuine, are the usual problem cases.
Religious and informal divorces
A religious divorce — a talaq, a get, a church annulment — is recognised only if it was also legally effective as a divorce under the law of the country where it occurred and the section 104 connections are met. A religious divorce pronounced in Australia has no legal effect here on its own; you still need an Australian divorce order. If this applies to you, talk to us before assuming you are divorced.
How to prove it
Keep a certified copy of the overseas divorce order or certificate and, if it isn't in English, an accredited translation. You don't register an overseas divorce in Australia; you simply rely on it when you need to — for example when applying to marry (the Registry of Births, Deaths and Marriages will ask for evidence of how your earlier marriage ended), or in property proceedings.
If you're not sure it counts
Applying for an Australian divorce when you are already validly divorced is a waste of the court fee; relying on an overseas divorce that isn't recognised can make a later marriage invalid. If there is any doubt, ask us. A lawyer will look at the overseas order and the connections at the time and tell you which position you're in — and if an Australian application is the safer course, we'll say so.
Property and children after an overseas divorce
A recognised overseas divorce ends the marriage but doesn't necessarily resolve property or parenting in Australia. Time limits and jurisdiction questions apply; if you have assets or children here, get advice — Freemont can help separately.
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