It is easy to assume that if a person is in Australia, that the Australian court system must be used to finalise the financial matters arising from the breakdown of a relationship. That is not the case. If person (or their former partner) has a connection to a foreign country they may be able to utilise those foreign courts to achieve a better financial outcome.
Family law is not universal. Each country has different provisions governing property divisions and financial support. For example, the courts in the United Kingdom provide extremely generous spousal maintenance and child support orders (great if you are a wife with children), New Zealand (unlike Australia) has preserved the sanctity of trusts in family law (usually great if you are the husband or heir to family wealth), and the United States provides incredible enforcement opportunities to ensure child support is paid.
The question of whether or not a person should (or is able to) attempt to engage the courts in a foreign jurisdiction depends upon their individual circumstances. An example – if a young family with UK connections is income rich but asset poor (eg: relatively minor property in Australia, but the husband works primarily in England with a significant income) and the wife gave up her job at the time of marriage and has since cared for their three children, she may be much better off in attempting to engage the English courts to obtain what could be a lifetime spousal maintenance order on top of generous child support which could include a house and all private education expenses for the children – as opposed to obtaining an order in the Australian courts and then perhaps only achieving a share of the minor Australian property and little or no spousal maintenance for a very short period of time.
It is important to obtain legal advice early to ascertain whether taking (or not taking) legal steps in Australia is the best course of action for a client. A person may inadvertently cut themselves off from the ability to engage a foreign court if they did something (normally considered minor) such as applying for divorce in Australia. On the other hand, a person may want to quickly engage the jurisdiction of the courts in Australia before their former partner engages a foreign court.
By Sarah Bastian-Jordan – Senior Associate – Phillips Family Law