International Family Law and Asset Division

22 March 2018

Joanne Stapley

How do I protect my overseas assets during separation?

My relationship has ended but my partner and I are in different countries what do I do?

I have properties and trusts held in several countries but where is the best place to commence my divorce proceedings?

These are the questions being raised by family law clients more regularly as more family law matters are being brought to the Courts attention involving international aspects. This may include overseas properties, monies held in international accounts, international shareholdings and pensions held outside of Australia.

When determining the best way for such matters to be determined, as part of working towards a division of the matrimonial asset pool, the following considerations arise:

  1. Does the Family Court or the Federal Circuit Court of Australia have jurisdiction to determine the case.
  2. Given that various assets may be held in a number of countries, is there a foreign jurisdiction that would also be able to determine your case and are there advantages or disadvantages to your case being heard in a jurisdiction outside of Australia.
  3. If the Australian courts are determined to have jurisdiction to deal with the assets, what is the likelihood of an Australian judgement or court Order being enforced in the country where the asset/s are held.
  4. If proceedings were commenced in another jurisdiction outside Australia, do the Australian courts have the ability to grant an anti-suit injunction to restrain such proceedings from continuing.
  5. Are there multiple jurisdictions that could determine your matter and could certain aspects of you matter be dealt with in Australia and other aspects in the applicable overseas jurisdiction, so as to achieve the best outcome for you.

Another issue to consider is how secure are your overseas assets when they may be held in your former spouse or partners name. You may need to consider if there is a risk that your former spouse or partner may dispose of those assets without your knowledge. If there is an urgent risk you may need to consider obtaining injunctive relief from the Court to prevent assets being dissipated or wasted.

The Family Court of Australia has powers which are in personam in nature. Put plainly, this type of power allows the Court to make an Order compelling a party to deal with a particular (foreign or otherwise) asset. It cannot compel or direct or secure the outcome per se. It does not have the ability to enforce its Orders overseas as such, except to direct a party to comply with its directions.

In some instances, overseas jurisdictions will recognise an Order or decree made in Australia, and will enforce same as if it were an Order or decree of that country. This however varies from country to country and it will be a question for the foreign jurisdiction to decide whether they will recognise an Australian judgment and enforce the judgment against the particular property or asset.

In the recent case of Kent & Kent [2017] FamCAFC 157 one party to the marriage commenced proceedings by way of a Petition for Decree of Dissolution of Marriage in the National Court of Justice in Papua New Guinea. The other party commenced proceedings for settlement of property in the Family Court of Australia. Both parties filed applications seeking anti-suit injunctions against each other and the party in Papua New Guinea also sought a permanent stay of the Australian proceedings.

In this matter the parties met in 1968, were both Australian citizens and following their marriage the parties moved to Papua New Guinea where the husband ran his own business. The wife returned to Australia in 1997 and both parties then visited each other in the two countries up until 2013, when the wife stopped returning to Papua New Guinea. The parties held real estate in Australia and the husband’s business assets were situate in Papua New Guinea.  At the time of separation, the parties had been together for 48 years.

The Full Court found that the stay application was required to be addressed prior to the competing anti suit injunctions and looked at what matters needed to be taken into account in determining if Australia was a “clearly inappropriate forum”. The Full Court took from the case of Henry v Henry (2011) 45 FamLR 269 some of the following considerations:

  1. Whether both Courts have jurisdiction to hear the parties case;
  2. If both Courts do have jurisdiction, will each jurisdiction recognise the other’s orders and decrees;
  3. Which jurisdiction may be able to provide resolution to all of the matters involved;
  4. The time when each of the proceedings were commenced;
  5. The stage at which the proceedings in each of the jurisdictions had reached;
  6. The costs that the parties had incurred;
  7. The connection between the parties and each of the respective jurisdictions;
  8. Whether both parties were able to participate in each of the jurisdictions on equal footing (i.e. in cases where there may be a language barrier); and
  9. Taking into consideration the issues that are particular to that case and the general circumstances of the case.

There are many factors that need to be addressed and properly considered before even reaching the stage of commencing proceedings in such cases. This may seem overwhelming however as an Accredited Family Law Specialist firm, our team can assist you through the process so that you can rest assured that the best approach is taken, for you to achieve the best outcome possible, no matter where your assets may be located.

Please contact us on (02) 9437 0010 or enquiries@dev.elevatebusiness.com.au to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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