It’s a question that arises often from our customers – Can I still apply for a divorce in Australia if I am living overseas? The answer is – yes, so long as you or your former partner have a connection to Australia.
This article will explain exactly how and when you can apply for divorce in Australia, even when you or your former partner are currently living outside Australia.
In order to apply for a divorce in Australia, the Family Courts must have jurisdiction to consider your application and make an order.
The Court will need to see a link between you and Australia and/or your former partner and Australia. To prove you have a connection to Australia, you can rely upon living arrangements or recognised legal rights, for example having status as an Australian citizen.
Here is a simple checklist to see if you are eligible to make an application for divorce in Australia:
To make an application for divorce in Australia, you or your former partner (at least one of you) must:
- Be an Australian citizen by birth or descent; OR
- Be an Australia citizen by grant of citizenship; OR
- Regard Australia as your own and intend to live in the country indefinitely; OR
- Ordinarily live in Australia and have done so for the 12 months immediately prior to applying for a divorce.
So, to be eligible to apply, you (or your former partner) must be able to answer ‘Yes’ to at least one of the above options. You do not need to be able to answer ‘Yes’ to every option.
Now let’s take a closer look at each of the options.
Australian citizen by birth or descent
If you or your former partner are an Australian citizen by birth (you were born in Australia) or by descent (your parents are Australian citizens), then you are able to make an Application for Divorce in Australia. This is the case even if you are not living in Australia.
Australian citizen by grant of citizenship
If you or your former partner are an Australian citizen by a grant of citizenship, you are able to make an Application for Divorce in Australia even if you are not living in the country. The Family Courts will generally require you to prove your citizenship which can be shown by your Certificate of Citizenship.
Living in Australia
If you are living abroad and your former partner has sought refuge in Australia and has abandoned their former place of residence and intend to live in Australia indefinitely, you will be able to file an Application for Divorce. This also counts if you are living in Australia, but your former partner is living outside Australia.
Ordinary resident in Australia
If you are living overseas and your former partner has been an ordinary resident in Australia for the immediate 12 months before filing your Application for Divorce, you can apply for a divorce. This option requires you to confirm that your former partner has been living in Australia as part of their ordinary life (rather than just a short holiday or visit).
Joint or Sole Application for Divorce
The information in this article applies to both Sole Applications for Divorce (when one party applies on their own) and Joint Applications for Divorce (when both parties apply together).
If you are intending to file a Sole Application for Divorce in Australia and you are living overseas, you are only able to apply if:
- You or your former partner is an Australian citizen; OR
- Your former partner has domiciled (is living) in Australia; OR
- Your former party has been an ordinary resident in Australia and has lived there for 12 months immediately prior to filing for divorce.
Address for Service
Remember, even if you are living outside Australia when you make your application for divorce, you will still need to provide the Court with an Australian postal address where the court can send you documents. This can be a postal box number or the address of a friend or family member (it does not have to be your residential address).
We hope you have found today’s blog useful.
If you have any questions or comments, please get in touch with us here.
The eDivorce team
* The Family Law Courts are Federal Courts which have jurisdiction in all States and Territories of Australia, except Western Australia. WA has its own Family Court, the Family Court of Western Australia (“the FCWA”). This means WA residents must apply to the FCWA for divorce. Please note that eDivorce Kits and eGuides can still be used by WA residents and lodged with the FCWA.
**These steps are designed to assist people to achieve a simple stress-free divorce. If your situation is complex you should seek legal advice.