Earlier this week I was fortunate to present to accountants at a Legalwise seminar on Managing Relationship Breakdown and share what every accountant needs to know about family law. Accountants and family lawyers regularly work together to assist people they advise and guide when an accountant is called upon to provide information about one or […]

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Our duty as family lawyers is to take the heat out of matters, to hose them down, rather than adding fuel to the fire. If we take up our client’s cause, we lose our objectivity and impartiality. Our judgment becomes clouded. We are prevented not only from carrying out our duty to the Court and […]

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We’ve all heard horror stories about how difficult or emotionally-charged situations can become during separation or divorce. If you are going through separation or divorce right now you may have people in your life who have been down this path before that may be offering insights and advice about what you should and shouldn’t do. […]

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I recently presented at the Law Australasia conference on the topic of Binding Financial Agreements (BFA’s) as an estate planning tool – to an audience of accountants, financial planners, commercial lawyers and business advisory professionals. In my presentation I detailed, in the context of estate planning, how they might utilize BFA’s in the protection of […]

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We are incredibly proud to announce that Phillips Family Law has once again been ranked as a first tier Family Law firm by the Doyle’s Guide to the Australian Legal profession in the category of Leading Family and Divorce Law Firms in Brisbane for 2019. In addition to this fantastic result for the entire team, […]

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The holiday season has come and gone, the school year has started. In my experience, this is a time where many people are considering significant decisions about the future of their relationship. While some have already decided to separate, others are contemplating their next steps. So, why is this the case when the holiday season […]

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At the start of this year the world’s wealthiest couple announced they are divorcing. Jeff Bezos is the founder and CEO of Amazon and his soon-to-be ex-wife MacKenzie, met when they worked for a New York City hedge fund. Married for 25 years with four children, their announcement created a media frenzy for a few […]

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If like me, you came across the Netflix television series Grace & Frankie over the holiday period, chances are you’ll know the point in the show where a decision needs to be made about living arrangements. While their circumstances are somewhat unique, the question ‘who gets the holiday house?’ is one that is brought up […]

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When couples who have accumulated assets in countries other than Australia decide to separate, it is important to understand that a Court in other countries may take a differing approach to family law disputes than here in Australia.
We have worked with a number of Australian citizens going through separation or divorce with international intricacies, including a significant number of individuals who have lived and worked or are living and working, in a variety of nations.
When separating, the Family Law Act applies here in Australia but if orders drawn up here in Australia that are not enforceable in another country, it can be problematic.
Property Settlement
If you have assets in Australia as well as in another country it is important to get advice in both jurisdictions. Here in Australia you can deal with assets overseas but we recommend our clients also seek advice from a lawyer in the country those assets are held. We regularly source lawyers from other jurisdictions to assist our clients and work in conjunction with lawyers overseas so our clients can be confident that any orders made are enforceable in both countries.
If you have assets in Australia as well as in another country, some relevant considerations that need to be taken into account are:

Whether the Family Court or the Federal Circuit Court of Australia have jurisdiction to determine the case
Is there a foreign jurisdiction that would also be able to determine the case?
Are there any advantages or disadvantages to the case being heard in a jurisdiction outside of Australia?
If you proceed with sorting out your property settlement in Australia, is an Australian judgment or court Order going to be able to be enforced in the other country where the asset/s are held.

It is common for people who have worked in the UK to have a pension – unlike the Australian pension but rather similar to how superannuation works for us here in Australia. As these fund amounts are taken into consideration when undertaking a property settlement, it is important to seek advice in the UK about this regardless of whether you are still in the UK, have moved back to Australia or are living abroad. Some overseas superannuations funds will required an order from the nation they operate in before releasing funds for a property settlement. This is a common example of where two sets of orders need to be made for them to take effect.
Even if all of your assets are in another country it is wise to seek advice in the country you reside in, just to confirm before you proceed with any agreements. Both your lawyer in Australia and your lawyer in the other country can liaise to ensure that any agreement reached will be enforceable.
Parenting Arrangements
If you have children and separate overseas, it is very important to seek advice from a Family Lawyer immediately. If you wish to return to Australia you will need to ensure you do not breach any laws of the country you have been residing in.
Where there are issues with children being taken by one parent to another country without the others’ consent, the Hague Convention, an international agreement that exists between signatories, can be enforced. This international agreement covers international parental child abduction. Generally speaking it provides a method to ascertain which country the child custody case will occur.
If one parent leaves a country which is the child’s habitual residence, without the other party’s consent, and travels to another country that is a signatory to the Hague Convention, the parent and child will be ordered to return. The dispute will take place in the country in which they are habitually residents.
What can be difficult to ascertain in these cases is whether there was initial consent from the other parent to take the children with them. It is for this reason that if you separate while living overseas, any immediate consent to travel or return to Australia with the children should be in writing. Although unenforceable, if the issue of consent later becomes an issue, this can be used as evidence of leaving a country leaving with consent. This is relevant even when a separation seems amicable. We see amicable separations become no longer amicable for one reason or another so we strongly encourage having written consent to avoid being ordered to return
Who do I speak to first?
For both property and parenting orders you may not require a lawyer to represent you in multiple jurisdictions but we recommended that clients seek advice in each of the countries you have assets in or reside.
We work with clients to do this. If you are in need of a lawyer in another country, we have a network of lawyers we liaise with regularly in different parts of the globe and refer our clients to. After speaking with both lawyers, you will be aware of which country you would best to engage a lawyer in, and to draw up orders. In the second country, that lawyer would not be engaged to draw up orders but instead may be engaged to consider the agreement and recommend amendments to the orders to ensure it will be enforceable in both jurisdictions.
Although our Courts have a general power to make property adjustment orders in relation to assets outside of Australia, there are often technical issues as to whether that order can be enforced, how to implement it and whether there are any tax implications. It is wise to seek advice from both jurisdictions so you can make a decision to apply to the Courts in whichever jurisdiction is best for you.
Related: Why you may need to be cautious even in an amicable separation
Thinking of relocating with children after separation? Things to know before you start packing.
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If you need assistance with international property settlement or parenting arrangements, Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Olivia Phillips, Associate, Phillips Family Law
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