Worried young woman sitting on sofa at home and ignoring her boyfriend who is sitting next to her

Going through a divorce can be burdensome and overwhelming for both parties involved, especially their children. Not only do you have to be emotionally prepared, but it also involves financial, mental, and psychological preparedness. When you decide to go through a divorce, there are numerous things you need to consider, including your children’s future, custody, division of properties, new living arrangements, and the schedules of parenting.

With all these things in mind, it’s safe to say that divorce is a complex procedure. It’s not as easy as some movies portray couples signing a piece of paper, and then they’re officially divorced. A lot of processes and paperwork are involved, including court hearings. The emotional turmoil caused by these intense life-changing decisions can make it tough for couples to comprehend the legal steps needed for the divorce’s completion.

Suppose you and your spouse had finally settled on the decision of going through the divorce process. The next thing you need to consider is where did you got married. In Australia, if you and your spouse married overseas, your divorce application will still be accepted as long as you fit into their set of requirements.

To learn more about the process, read this guide: how to get a divorce in Australia if married overseas.

Meanwhile, here are four divorce considerations you and your spouse must take note of.

1. You Fit the Criteria

Before you proceed to hire each of your divorce lawyers and apply for divorce, see to it first that you meet one or more of the following criteria:

  • You or your spouse are a legal Australian citizen, either by birth, descent, or was granted Australian citizenship.
  • You or your spouse are currently staying in Australia.
  • You and your spouse have lived in Australia for the past twelve months before your divorce application.
  • You or your spouse consider Australia as your permanent residence and has the intention of living here indefinitely.

If both of you meet at least one of the above criteria mentioned, you are authorized to apply for divorce at the court. Keep in mind that you need to have evidence for these, regardless of your circumstances.

Additionally, you also need to show proof in court that you and your spouse are already separated for at least 12 months before the date of the divorce application, with no likelihood of reconciliation for your marriage. Nonetheless, it’s still possible to live on the same roof and still be separated.

2. Divorce Application Is Served Within the Time Limit

It’s easier to serve the divorce papers if both you and your spouse are in the same country to complete the process. However, if your spouse is overseas, you need to serve them the divorce documents and must have them completed within 42 days before your scheduled court hearing. If you fail to do so, the court will settle in default.

By default, it means whatever conditions or requests you filed will be granted by the court, including custody, division of property, child support, and more. Thus, for your spouse who’s currently located overseas, they need to be active when served with any divorce documents to avoid losing their rights and other chances of having the property equally divided. The same rule goes if you’re the one who is currently overseas.

3. Know Where Your Spouse Is Located

Couple with divorce contract and ring on desk. Divorce

It’s given that divorce is only made possible when the two parties involved are present, active, and know each other’s current whereabouts. It will be hard for you to serve divorce documents if you don’t know where your spouse is currently residing in the first place.

In case you’re unsure or have no idea about where your spouse may be and have made all possible efforts (at least three times) to locate them, you need to file an application on the court with either of the following:

  • Substituted Service 

In this application, instead of serving divorce documents to your spouse himself, you can serve it to a third person, and he will be the one who will pass on the documents for your spouse. Make sure that your chosen third person is approved first by the court.

  • Dispensation of Service 

There are several reasons why a person couldn’t locate their spouse’s recent address. It may be because your spouse doesn’t want to be found and has closed off all information regarding their residence, or they don’t want to take part in any of the divorce processes. It can also be that your spouse is located in far rural areas of a particular country and is impossible to be found due to limited resources, or perhaps he’s in a homeless state.

For this option, you won’t have to serve divorce documents for your spouse anymore once the court has agreed that you’ve made all possible attempts to search them and still failed to do so. However, keep in mind that the court will have to ask for proof of your attempted contacts, including:

    • Message or call history you’ve made with your spouse’s close friends and family
    • Message or call history made for your spouse’s employer
    • Searches you have undertaken (e.g., social media, the electoral roll, and email accounts)
    • Notices and Announcements you’ve publicly posted in the newspaper, radio announcements, and other media outlets
    • Expenses you’ve incurred while trying to locate your spouse
    • Other relevant details of when you’ve last seen or spoke with your spouse

Before applying to any of the options above, it’s best to seek legal advice from your lawyer.

4. Your Marriage Certificate Must Be in English

While an overseas marriage is not registered in your country, your existing marriage certificate is still valid and considered to constitute evidence that your marriage happened. Considering that you and your spouse had the ceremony legalized overseas or in a country that uses a local language other than English, then understandably, your marriage certificate will be based on that country’s language as well.

For this reason, you’ll need to have your marriage certificate translated by a professional translator. That person must show proof and other necessary qualifications that he’s legible to translate your marriage certificate.

Furthermore, your registered translator must also sign an affidavit stating that their translation is honest and accurate. Then, have your original marriage certificate and its translation attached to an affidavit, and you will present this as your evidence to the court.

The Bottom Line

Overall, divorce is still possible even if you married overseas as long as both of you will cooperate in fulfilling all the divorce requirements and considerations mentioned above.

Keep in mind that not all divorces are the same. It’s not a one-size-fits-all situation wherein other people’s family matters can be applied to yours. Thus, don’t hesitate to seek legal advice from your lawyer and let them help you get through each divorce procedure to ensure you and your spouse will be peacefully settled in terms you both agreed to have.