NSW What happens if I divorce after migrating to Australia?

[Victorphang]

Hi all, I hope you can help me with this. I spent a couple of years living in Australia with my girlfriend, then we moved back together to my home country (Vietnam) for 1 year. I am thinking of going back to Australia for about 1.5 years as a permanent resident with my girlfriend and probably marrying her there, before leaving Australia again for good- potentially to New Zealand, which I really love. The vast majority of my assets are in Vietnam. I was wondering:
(1) If, some years down the line, we, unfortunately, separate and get divorced, while we are living outside of Australia, will the Australian family court claim jurisdiction (if applied to by my partner) to decide on the division of my assets in light of the divorce?
(2) Will the chances of an Australian family court claiming jurisdiction be even higher if we had a child born in Australia (Australian citizen), even though we and the child had by the time of the divorce, moved away from Australia for some years?
Thanks for your help!

 

[Atticus]

The vast majority of my assets are in Vietnam. I was wondering:

(1) If, some years down the line, we, unfortunately, separate and get divorced, while we are living outside of Australia, will the Australian family court claim jurisdiction (if applied to by my partner) to decide on the division of my assets in light of the divorce?

Divorce and property settlement to deal with the division of assets are two separate processes...

To apply for a divorce in Australia, the applicant needs to be either born here, has become a citizen, or lawfully residing here with intent to remain & has been here for at least 12 months immediately prior to application....

As for property settlement, if all major assets are in Vietnam, that would be the most appropriate jurisdiction to file

(2) Will the chances of an Australian family court claiming jurisdiction be even higher if we had a child born in Australia (Australian citizen), even though we and the child had by the time of the divorce, moved away from Australia for some years?

Not for divorce or asset division, maybe child maintenance, but that would more likely be the place of habitual residence

 

[Victorphang]

Divorce and property settlement to deal with the division of assets are two separate processes...

To apply for a divorce in Australia, the applicant needs to be either born here, has become a citizen, or lawfully residing here with intent to remain & has been here for at least 12 months immediately prior to application....

As for property settlement, if all major assets are in Vietnam, that would be the most appropriate jurisdiction to file


Not for divorce or asset division, maybe child maintenance, but that would more likely be the place of habitual residence

Thank you so much for your reply. Could you help me understand a little better? As you mentioned, my partner would be able to apply for a divorce in Australia if she was living here for 12 months prior to application (which I suppose she could do if she moved back to Australia if we ever separated). You mention that property division matters would not be entertained by the Australian court if all the major assets were not in Australia. I've been reading about this and from my limited understanding, Australian courts would only decline to hear the case if the judge decides that the Australian court is the "clearly inappropriate forum" (Voth case). Is the fact that no major assets (or assets at all) are in Australia render the Australian court a "clearly inappropriate forum"? How about if my partner brought my Australian citizen child to Australia wiith her? Would that make Australia not a "clearly inappropriate forum" for child maintenance but a "clearly inappropriate forum" for divorce or asset division? Thank you for your help!

 

[Atticus]

You mention that property division matters would not be entertained by the Australian court if all the major assets were not in Australia.

Not exactly, what I wrote was >>> if all major assets are in Vietnam, that would be the most appropriate jurisdiction to file <<<.

She could file here in Australia, however if all the major assets, particularly property, is located in Vietnam for example, then that is more appropriate because orders made in Vietnam could be enforced there (presumably), whereas an order made in OZ to do with property in Vietnam may be difficult to enforce if it needed to be.... At the very least the Australian orders would need to first be registered in Vietnam... Just adds a layer of complexity that wouldn't exist if orders were made in the jurisdiction in which the property was located

How about if my partner brought my Australian citizen child to Australia wiith her?

She could apply for child support via the CSA if a normal assessment could be carried out, or seek a child maintenance order from court if CSA is not able.... In either case, you would need to be resident in a reciprocating jurisdiction & the appropriate process undertaken in that country to collect child support or child maintenance payments from you...

Child support has nothing to do with property orders.... the jurisdiction in which the property is located would still be the most practical to file for that IMO