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Decided it's time to divorce your ex - but they are stuck overseas?
By Fiona Reid
If you fall into this category, you are not the only one. Lawyers’ inboxes and online forums around the country are being flooded with one very important question surrounding divorce – can you get a divorce if one person is stuck overseas due to international travel restrictions?
COVID-19 has formed a cloud of doubt over countless relationships – especially where geographical difference has proven too much to handle. Prior to the pandemic living abroad and frequently travelling to see your other half was realistic and incredibly common, however with international travel feeling like a mystical activity from our past life and not in our near future, many long-distance relationships are failing.
Couples split up all over the world every day and a number of those are looking to move on with their lives. We are receiving many enquiries about the process of getting divorced when one of the parties is not living in Australia. People should know however that if one person cannot return to Australia due to COVID and the other person in the relationship is ready to get the ball rolling on the formal proceedings, there are simple steps you can take to finalise a divorce.
Being able to file for divorce in Australia is entirely dependent on meeting jurisdictional requirements. These include being able to satisfy the Court that one of the following applies to either the person applying for the divorce or their spouse:
Regarding Australia as your home and intending to live in Australia indefinitely, or
Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
When filing for divorce in Australia you will also have to satisfy the Court that you have been separated for a period of at least 12 months and that there is no likelihood of reconciliation. If you satisfy all of these jurisdictional requirements and the period of separation, then being overseas will not be a bar to getting the divorce.
Another complication that has arisen due to divorces being filed from opposite sides of the world is the situation when one person wants a divorce and the other person doesn’t.
For some people distance does make the heart grow fonder, while for others it can be the final nail in the coffin for a relationship. With no clear indication of when international travel will resume to normal and hotel quarantining is off the cards, there is a common thread woven between international divorces of one person holding up proceedings as they refuse to sign the divorce papers.
For the person who does want the divorce, it can be a very challenging situation to be in when you can’t see their former partner face-to-face and ensure they put pen to paper. Drawing out divorce proceedings can become incredibly costly in legal fees, amplify the stress of their ex-partner, and result in both parties becoming resentful towards each other.
There are steps a spouse can take to finalise a divorce when the other person won’t agree, and important things to understand in the process.
You can apply for a divorce by way of a joint application or a sole occupation. So, if the other side doesn’t want to make a joint application, and provided you satisfy the jurisdictional requirements and period of separation, you can apply on your own.
The only way the other person can oppose the divorce is if they can prove that the period of separation has not been 12 months. They would need to file a response to the divorce and an affidavit setting out their position. The applicant then has an opportunity to reply. The Judge hearing the matter will then determine whether the period of separation is satisfied. If so, it is likely the divorce will be granted.
If you apply for a divorce on your own, you have to prove to the Court that the other side has been served with 28 days’ notice of the Court date if they live in Australia and 42 days’ notice if they live overseas.
If they can not be served personally, you have to provide other means or show that you have endeavoured to reach them via other means.
For people living in limbo who want to get a divorce and move on with their life, there are solutions - they just take a bit more thought.
Fiona Reid is one of Australia’s leading family lawyers. Her business, Reid Family Lawyers is highly respected and has two offices in Sydney: Brookvale and Surry Hills. The firm provides services in the areas of: separation and divorce, mediation, parenting issues, spousal support, property settlements, relocation, same-sex couples; and surrogacy.
