Hi PatrickJSP,
If an Australian Family court has jurisdiction to hear your matter, it may adjust your property rights in properties located overseas regardless of any rights you have under foreign law.
The legislation governing most of Australia is the Family Law Act (Cth), (all states except WA).
Jurisdiction of Australian Family Courts
The first step is to determine whether an Australian Family Court has jurisdiction (or is allowed) to decide your case. It generally will if you meet the following requirements:
- either party to the relationship or other relevant party to the proceedings is an Australian Citizen, resident or a person present in Australia;
- you must have a 'matrimonial cause' - which is a matter involving a party's maintenance or property of the parties.
(A property settlement dispute between a married couple with sufficient connection to Australia would therefore likely fall within the Family Court's jurisdiction.)
Nature of the Family Court's Extra territorial reach
- Section 31(2) of the Family Law Act provides that, “the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories.” This means that Australian Family Courts can make orders with regard to property outside of Australia. This is because proceedings under the Family Law Act are directed toward the rights of the individuals - the parties to the proceedings, not the property. This means that the court's judgement can be enforced against a person where ever he or she is. The proceedings are not directed toward the property - which would require that proceedings be filed with a court where the property is located and could only be enforced in that jurisdiction.
- Australian law applies to the determination of the property dispute, even though some property is located overseas.
- Foreign property may be drawn into Family Court proceedings if one of the parties owns or controls the foreign property.
