Married Outside Australia — Can You Divorce in Australia?

For many Chinese people who have settled in Australia, it is very common to register a marriage in China and then move to Australia to live. But falling in love is easy; staying together is hard — especially when life is lived overseas. Maintaining a relationship becomes even more difficult, and in the end the couple may be unable to continue and may reach the point of divorce.

So the question is: if you originally registered your marriage in China and did not marry in Australia, can you divorce in Australia?

This article discusses exactly that.

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 at the time under the law of the country or region where it took place, it will generally also be recognised as valid in Australia.

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

2. If you married overseas, can you divorce in Australia?

Even if you married overseas, you can still divorce in Australia if you meet one of the following prerequisites. As the body that hears divorce applications, the Federal Circuit Court of Australia will hear your divorce application.

You or your spouse is an Australian citizen, or
You or your spouse is an Australian permanent resident (PR), or
You or your spouse ordinarily lives in Australia and has lived in Australia for at least one year before the divorce application.

In short, under Australian law, as long as at least one spouse is an Australian citizen, an Australian PR, or a holder of a substantive visa (such as a student visa, work visa, or other temporary visa) who has lived in Australia for at least 12 months, and the couple has been separated for at least 12 months with the relationship having irretrievably broken down, an application for divorce can be made in an Australian court. No agreement is required to apply for divorce, and one party can apply unilaterally even if the other does not agree.

3. What is the divorce process in Australia?

In China, if both parties agree to divorce, they only need to go together to the Civil Affairs Bureau — there is no need to sue in court. In Australia, however, either or both parties may apply for divorce, but in every case the divorce must be made by an order of the court. This difference is important to note.

In other words, divorce proceedings must be commenced by one or both spouses in the Federal Circuit Court, and the divorce only takes effect once the court grants a Divorce Order. Before applying, the couple generally needs to have satisfied the precondition of being separated for at least 12 months.

After the divorce documents are filed, the court will schedule a hearing date about 3 months later — that is, from the time you begin the divorce application to the court hearing in Australia, the process takes roughly 3 months. If the Australian court grants the divorce at the hearing, the Divorce Order takes effect 1 month and 1 day after it is made.

4. How is “separation” defined for an Australian divorce?

In Australia, separation means that you are no longer living together as a married couple. For marriages of less than two years, there is also a mandatory requirement to attend mediation with a third-party counsellor before applying for divorce.

If factors beyond the couple’s control (for example, the earlier pandemic) mean that the couple who want to divorce cannot live in two separate households, Australian courts also accept “separation under one roof”. Under Australian family law, if the two parties are no longer living or socialising as a married couple, then even if they continue to reside at the same address, that can still be a form of separation recognised by the court.

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

In Australia, divorce, property division, and parenting arrangements for children are three entirely separate matters. At the time of the divorce, the parties do not need to have reached agreement on property or parenting. These matters can be dealt with as early as the date of separation, or as late as within 12 months after the Divorce Order is made.

6. If one party is not in Australia, or one party does not agree to the divorce, can the other still apply for divorce in Australia?

If one party is not in Australia, or if one party does not agree to the divorce, the other party can still apply for divorce in Australia.

If the party seeking the divorce has difficulty serving the divorce application documents on the other party who is not in Australia, they may apply to the Australian court for Substituted Service or for a dispensation of service.

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

7. If you divorce in Australia, is the divorce certificate 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 People’s Republic of China, the party concerned may apply directly to the competent intermediate people’s court in the PRC for recognition and enforcement.

Accordingly, a divorce granted in Australia is, in principle, only effective in Australia. If you wish to bring the divorce certificate back to China and rely on it there, you will also need to take the Australian judgment to the intermediate people’s court at your place of residence in China for authentication.

8. Can you remarry in Australia before the divorce is finalised?

No. Before remarrying, please make sure you allow enough time for the divorce process to complete and for the court to confirm that the divorce has formally taken effect; only then can you remarry. This is because Australian law prohibits remarriage before the court has issued a divorce decree. If a remarriage does occur, it will be unlawful and will constitute the offence of bigamy. Bigamy refers to the act of marrying another person while still married, and bigamy is a criminal offence in every Australian state and territory. Accordingly, if you wish to remarry, you must ensure that the divorce has been finalised.

9. How much does a divorce in Australia cost?

The costs fall mainly into two categories: the application fee, which is currently $990; and the lawyer’s professional fees, which vary between lawyers — you should confirm the expected fees before formally engaging a lawyer. In many cases, parties who handle their own divorce will easily make mistakes, cannot match the efficiency of professional guidance, and end up delaying the divorce process, so if you are unsure you should seek professional advice.

Final thoughts

We of course hope that every marriage is happy and fulfilling, but as lawyers we give advice rationally: if a marriage truly cannot be saved, cutting losses in time may be the better course. We hope this article is helpful. If a divorce has reached a point where the parties cannot reach agreement, we recommend seeking advice from an experienced lawyer to make the process run more smoothly.

At NS Legal, we have extensive experience in Australian marriage and family law. We are committed to providing every client with professional and personalised advice to help you deal confidently with divorce and other family law challenges. For any issues you may encounter, we can provide legal advice and guidance.

We have written a range of articles on divorce in Australia, the divorce process, key considerations, property division, child-support arrangements, and more. You are welcome to read them:

How does separation under one roof satisfy the separation requirement for divorce?

Requirements and process for obtaining a divorce in Australia

How is property divided after a divorce in Australia?

Understanding parenting agreements in Australia

Can superannuation be divided after divorce?

What to watch out for in property division during an Australian divorce

If your spouse has been unfaithful, can you claim a larger share on divorce?

In Australia, can a sponsor who is not yet divorced sponsor a third person for a partner visa?

After divorce, do step-parents have parenting responsibilities for the child?

How is child support allocated after a divorce?

Do you need a lawyer for a divorce? What can an Australian divorce lawyer do?

How should you sign a parenting agreement in Australia?