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Understanding Australia’s no-fault divorce

Understanding Australia’s no-fault divorce

It is becoming increasingly common for separating parties to have property located in a number of different countries, which can complicate matters, particularly when orders are made in one country with respect to property located in a different country.

In recognition of the close relationship between Australia and New Zealand, both countries have implemented legislation to facilitate recognition of orders made by civil courts in each country.  In Australia, the relevant legislation is the Trans-Tasman Proceedings Act 2010.

Whilst this legislation was primarily aimed at facilitating co-operation in civil commercial matters, the legislation may also be useful in property matters between separated parties.  This is significant, as historically, foreign property orders have not been able to be registered and enforced in Australia.

Under section 67 of the Act, the Family Court of Australia has the jurisdiction to register a final order made by a New Zealand Court, meaning the order can then be implemented and enforced in Australia.

Watts McCray recently acted on behalf of a party who had obtained Orders in the Family Court in New Zealand for funds held in an Australian bank account to be transferred to a New Zealand account, to then be divided in accordance with those Orders.  Due to a lack of agreement between the parties and the requirements of the Australian bank, it was necessary to register that Order in Australia, so it could then be implemented and enforced and the funds transferred in accordance with the Orders.

Upon applying to the Family Court for registration of the New Zealand Orders, it appeared that the legislation had not, to date, been applied by the Family Court.  Watts McCray made successful submissions to the Court in respect to the procedure to be applied, and were ultimately able to have those Orders registered, leading to the repatriation of a significant sum of money to New Zealand.  The process proved far more cost-effective and far more timely than commencing proceedings in the Family Court to obtain orders to the effect of the New Zealand orders.

Watts McCray Lawyers have significant experience in international family law matters, and are able to assist parties or overseas solicitors with any questions they may have about both parenting and property matters.

Post written and prepared by Monique Robb.

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