A marriage certificate, a wedding ceremony — two people finally come together, crossing the limits of space and geography to register their marriage in China. Love is hard-won, and staying together is even harder. If the couple later moves to Australia together, or one of them does, and their marriage withers for one reason or another, how do they go about getting divorced in Australia? Can a marriage registered overseas be dissolved in Australia?

Today we focus on whether a marriage registered overseas (for example, in China) can be dissolved in Australia, and what to watch out for during the divorce process.

1. If you married overseas, will the marriage be recognised in Australia?

The Marriage Act 1961 sets out the rules for whether an overseas marriage is valid under Australian law.

If you were married overseas, and your marriage was recognised as valid under the law of the country or region where you were married, it will generally also be recognised as valid in Australia.

If you were married overseas, there is no need to register the marriage in Australia. Under the Marriage Act 1961, the original or a certified copy of the marriage certificate or marriage record issued by the relevant foreign authority serves as proof of the overseas marriage and its validity.

2. If you registered your marriage overseas, can you divorce in Australia?

If you meet one of the following preconditions, you can apply for a divorce in Australia even if you were married overseas. The Federal Circuit Court of Australia, which handles divorce applications, will hear your case.

1. You or your spouse is an Australian citizen, or

2. You or your spouse is an Australian permanent resident (PR), or

3. You or your spouse ordinarily resides in Australia and has lived in Australia for at least one year before filing the divorce application.

Put simply, under Australian law, as long as one spouse is an Australian citizen, has permanently settled in Australia, or holds a substantive visa (such as a student visa, work visa, or other temporary visa) and has lived in Australia for at least 12 months, and the couple has been separated for at least 12 months with the relationship irretrievably broken down, an application for divorce can be filed with an Australian court. No agreement is required to apply for a divorce — a divorce can be granted even if one party does not consent.

3. What is the divorce process in Australia?

In Australia, a divorce application may be filed jointly or by one party alone. Either way, the divorce must be granted by a court order. This differs from divorce in China, where a couple wishing to divorce simply goes to the Civil Affairs Bureau and there is no need to apply to a court — so this is something to keep in mind.

In other words, the divorce process requires one or both spouses to apply to the Federal Circuit Court, and only takes effect once the court makes a Divorce Order. Before applying, the couple generally must have been separated for at least 12 months.

After the divorce documents are filed, the court schedules a hearing date, typically around three months later. If the divorce is granted at the hearing, the Divorce Order takes effect one month and one day after it is made.

4. How is “separation” defined for divorce purposes in Australia?

In Australia, separation means the couple no longer lives together as husband and wife. For marriages of less than two years, mediation through a third-party counsellor is compulsory before a divorce application can be filed.

If, due to the current pandemic, a couple wishing to divorce cannot live in two separate residences, Australian courts also accept “separation under one roof”. Under Australian family law, if the two parties no longer live or socialise as a married couple, this is a recognised form of separation even if they still live at the same address.

5. Can you divorce before reaching agreement on property and custody?

In Australia, divorce, property settlement, and child custody are three entirely separate matters. At the time of the divorce, the parties do not need to have reached agreement on property or custody. Those issues can be dealt with separately — at the earliest, from the time of separation, and at the latest, within 12 months of the Divorce Order being made.

6. What if the marriage certificate is not in English — what do I do when applying for divorce?

When applying for a divorce in Australia, you need to provide the court with a copy of your overseas marriage certificate, together with a certified English translation and an affidavit from the translator. The affidavit includes a declaration that the translator is qualified to translate, that the translation is accurate, and that the copy of the marriage certificate submitted with the divorce application is genuine.

7. If one party is not in Australia, or one party does not consent to the divorce, can the other party apply for divorce in Australia?

Yes, a divorce can still be applied for.

If the party seeking the divorce is unable to send the divorce application documents to the other party who is not in Australia, they can apply to the Australian court for substituted service or dispensation of service.

If your spouse is not in Australia, service of the divorce application must be completed at least 42 days before the hearing date.

8. Is an Australian divorce recognised as valid in China?

Under Article 281 of the Civil Procedure Law of the People’s Republic of China, where a legally effective judgment or ruling made by a foreign court needs to be recognised and enforced by a people’s court of the PRC, the party concerned may apply directly to the intermediate people’s court of the PRC with jurisdiction for recognition and enforcement.

So a divorce granted in Australia is, in principle, only effective in Australia. If you want to use the divorce certificate back in China, you will also need to take the Australian Divorce Order to your local intermediate people’s court for authentication.

“Final thoughts”:

A marriage registered overseas (for example, in China) can, under certain preconditions, be dissolved in Australia.

Unlike divorce in China, divorce in Australia must go through a court order, and Australian divorce does not deal with property settlement or child custody — the divorce process addresses only the divorce itself. Australian divorce is not conditional on fault by either party; it is enough that the couple has been separated for more than 12 months.

If you later want to return to China and use the divorce certificate there, the Australian Divorce Order will need to be authenticated before it is effective.

We of course hope everyone enjoys a happy marriage, but if a marriage truly cannot be saved, or if the pandemic makes it inconvenient to return home to handle the paperwork, we hope this article is of help. For divorce applications, it is also worth seeking advice from a qualified lawyer to make the process smoother.