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The Law and You: Property settlement, family and divorce law in Australia versus England and the European Union

Watts McCray Lawyers

We live in a mobile society.

It’s more and more common to form a relationship with a partner from another country. It’s also more common for partners to relocate to or from Australia, often for work. But what happens when these relationships break down?

This column provides some details about property settlement, family and divorce law in Australia, England and the European Union.

Can I choose where to have my matter dealt with?

If the parties live in Australia, it’s usual for divorce, parenting and property matters to be dealt with here. If parties have a close connection with another country, such as in the European Union (EU) or United Kingdom (UK), it’s worth considering if matters should be conducted in that country.

The reverse is also true. It’s worth it for ex-pat Australians to consider if it’s appropriate to conduct proceedings here, rather than in the country in which they’re living.

What do I need to think about if having matters dealt with in another country?

If the country is located in the EU or UK, there’s a fair bit to consider, which is why it’s worth seeking specialised legal advice. Here are a few thoughts:

  1. While Australia recognises de facto couples (including same sex couples) and provides for division of property after the breakdown of such a relationship, not all countries do. In the EU, for example, these couples have comparatively few rights for division of property.
  2. Some European countries consider pre-marriage and other marital agreements as binding. Parties can’t make changes, even if they didn’t have independent legal advice, or if there has been dramatic and unanticipated changes in circumstances.
  3. If parties have property in multiple countries, they need to be aware that some European countries cannot make orders about property outside of that country.  In England or Australia, the Courts consider and make orders about foreign property.
  4. Consider whether the country in which you start proceedings has the power to enforce orders about property and superannuation located elsewhere.
  5. Some European countries make orders for spousal maintenance only for a fixed period. Once that expires, parties can’t seek further spousal maintenance.
  6. Some European countries don’t take into account assets acquired before marriage or after separation. This can lead to unfair results for spouses who have given up their career or made other career sacrifices to care for children. England and Australia take pre-marital and post-separation property into account in property settlements.

What about financial disclosure?

Some European countries have very weak powers to instruct both parties to give financial disclosure. This means one party might not have the full picture of all assets and liabilities involved—often to their detriment. This contrasts with Australia and England where parties are compelled to make significant financial disclosure, and where judges are experienced in dealing with complex financial matters.

Who gets to choose the country that will deal with matters?

This depends. The European Union, for example, has passed laws to avoid conflict about which country should deal with a divorce or property application. The first person to file proceedings gets to choose the court that will deal with the matter—‘first in first served’.

It’s important to protect yourself by quickly sourcing practical, accurate and speedy advice about the benefits of filing in a European country, England or Australia. Getting in early with specialist advice and being ready to act. This will increase your chances of having your matter filed as soon as possible in the country of your choice.

Does Watts McCray have specialists who deal in international property matters?

Yes we do. We have significant experience in dealing with international property matters and can advise you on the benefits of commencing proceedings in different countries.

  • Two of our partners are fellows of the International Academy of Matrimonial Lawyers.
  • We also have close connections with the International Family Law Group, based in London
  • We have significant experience in English and European family law.

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Watts McCray Lawyers

Watts McCray is a leading firm of family and relationship lawyers. They have the largest number of accredited family law specialists in Australia and are backed by years of experience. Their lawyers have the skills to provide you with sound, practical advice about issues such as relationship changes and separation, property and financial matters, parenting arrangements after separation, child support and divorce. Watts McCray can also provide you with legal help if you want to resolve matters without having to go through Court. They can help with negotiation, mediation, collaboration and arbitration services as well as the traditional Court litigation process. They can also help with your estate planning and wills. Call them on (02) 6257 6347 for more information and for tailored services to meet your specific legal needs. They are located in Canberra House at 40 Marcus Clarke Street. More about the Author

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