International Assets and Family Law Disputes: Which Country Hears Your Case?

In Summary

• An Australian court can hear a financial dispute where one party is an Australian citizen, is ordinarily resident here, or, for divorce, is domiciled here or has lived here for the past year, and once jurisdiction is established the court can make orders about assets held anywhere in the world.

• Where another country's courts could also hear the dispute, priority is not decided by who files first. Australian courts keep the case unless the other party proves Australia is a "clearly inappropriate forum," a high bar set by the High Court in Voth and Henry v Henry.

• Because different countries divide assets very differently and an overseas order can be hard to enforce, where you litigate can shape the outcome, so early advice matters.

Separation is complicated enough when everything sits in one country. When a couple holds property in Sydney, superannuation in Australia, an apartment in Singapore and a bank account in London, two questions arise before anyone argues about who gets what. Can an Australian court hear the financial dispute at all? And if another country's courts could also hear it, which jurisdiction takes priority?

The answers sit in the Family Law Act 1975 and in two decisions of the High Court of Australia that continue to govern how these disputes are resolved.

When Can an Australian Court Hear a Financial Dispute?

For married couples, the jurisdictional threshold is set by section 39 of the Family Law Act 1975. Divorce proceedings can be commenced in Australia if either party is an Australian citizen, is domiciled in Australia, or has been ordinarily resident in Australia for the year before filing. Related financial proceedings can be brought where either party is a citizen, is ordinarily resident here, or is present in Australia at the relevant date.

That threshold is deliberately low. A person who moved overseas years ago but retains Australian citizenship can still invoke the jurisdiction of the Federal Circuit and Family Court of Australia.

For de facto couples, property proceedings carry a geographical requirement under section 90SK. Broadly, at least one party must be ordinarily resident in a participating jurisdiction when the application is made, and the relationship must have a sufficient connection to Australia, such as a third of the relationship spent here or substantial contributions made here.

Can the Court Make Orders About Overseas Assets?

Yes. Once jurisdiction is established, the property pool under section 79 captures the parties' assets wherever they are located. A villa in Italy, shares held through a Hong Kong brokerage and a foreign pension are all counted, and both parties are under a duty of full and frank disclosure that extends to assets held overseas.

The court's orders operate on the person rather than the asset itself. The court cannot direct a foreign land registry to transfer title, but it can order a party within its jurisdiction to sign the documents that achieve the same result, and it can penalise them for refusing. The practical limit is enforcement. If a party and their assets are both outside Australia, an Australian order may need to be recognised by a foreign court before it has any bite, and not every country will recognise it.

Which Jurisdiction Takes Priority?

This is where many people are surprised. There is no international treaty that ranks family law jurisdictions, and there is no strict rule that the first person to file wins. If proceedings could properly be brought in Australia and in another country, both courts may technically have jurisdiction over the same dispute.

Australian courts resolve the conflict using the "clearly inappropriate forum" test established by the High Court in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 and applied to family law in Henry v Henry [1996] HCA 51. A party who properly commences proceedings in Australia has a prima facie right to have them heard here. The other party must persuade the court that Australia is a clearly inappropriate forum, meaning that continuing here would be oppressive or vexatious. That is a high bar. It is not enough to show that another country would be more convenient or even more appropriate.

In Henry v Henry, the High Court identified the factors that guide the assessment. These include the connection of the parties and their relationship to each jurisdiction, where the assets and witnesses are located, whether each country will recognise the other's orders and how easily those orders can be enforced, which forum can resolve the whole of the dispute rather than part of it, and the stage each set of proceedings has reached. Where parallel proceedings are already on foot overseas, the High Court held that proceedings commenced second in time over the same controversy are prima facie vexatious, which makes timing genuinely strategic.

Why This Matters Before You File

Where you litigate can influence the outcome as much as what you argue. Different countries treat superannuation, inheritances and future needs very differently, and an order that cannot be enforced where the assets sit may be a hollow victory. Acting early, securing disclosure and, where necessary, seeking injunctions to preserve assets before they are moved offshore all become critical in international matters.

If your separation involves overseas property or a former partner living abroad, these are complex family law matters that reward early advice. Contact Espino Law to arrange a consultation about your property settlement and the forum that best protects your position.

FAQs

Can I start property proceedings in Australia if my former partner lives overseas?

Yes, provided the jurisdictional threshold is met. For married couples, it is enough that you are an Australian citizen or ordinarily resident here. For de facto couples, at least one party must be ordinarily resident in a participating jurisdiction and the relationship must have a sufficient connection to Australia. Your former partner living abroad does not, on its own, prevent you from filing here.

Can an Australian court divide assets held in another country?

It can. The property pool includes assets wherever they are located, so overseas real estate, foreign bank accounts and international investments all count. The court makes orders against the person rather than the foreign asset, so enforcement may still require recognition by a court in the country where the asset sits.

Does the first person to file get to choose the country?

Not automatically. There is no rule that filing first decides jurisdiction. Where proceedings are already running overseas, though, Australian courts treat a second set of proceedings over the same dispute as prima facie oppressive, so timing can matter a great deal in practice.

What does "clearly inappropriate forum" actually mean?

It is the test Australian courts use to decide whether to step aside for a foreign court. A party who properly starts a case in Australia has a right to have it heard here unless the other party proves that continuing in Australia would be oppressive or vexatious. Showing that another country would simply be more convenient is not enough.

What happens if the overseas country ignores the Australian order?

This is why enforcement is assessed early. If assets and a party sit outside Australia and the foreign country will not recognise the Australian order, that order may be difficult to give effect to. In these cases, securing disclosure and seeking injunctions to preserve assets before they move offshore can be more important than the final order itself.

Glossary

Domicile: 

The country a person treats as their permanent home, which can differ from where they currently live. It is one of the bases on which Australian divorce jurisdiction can be established.

Ordinarily resident:

Living in a place as part of the settled, regular pattern of your life, rather than being present only briefly. It is a key jurisdictional threshold for both married and de facto financial proceedings.

Participating jurisdiction:

A state or territory that has referred its de facto financial powers to the Commonwealth, allowing the federal family law courts to make property orders. All states and territories except Western Australia participate.

Property pool: 

The combined assets, liabilities and financial resources of both parties, wherever located, that the court assesses and divides in a settlement.

Clearly inappropriate forum:

The legal test for whether an Australian court should decline to hear a dispute in favour of a foreign court. The party seeking to stop the Australian case must prove Australia is clearly inappropriate, not merely less convenient.

Forum:

The court or country in which a legal dispute is heard. In international matters, more than one forum may have jurisdiction over the same dispute.

Parallel proceedings:

Separate legal proceedings about the same dispute running at the same time in two countries. Their existence is highly relevant to whether an Australian court will continue to hear a matter.

Prima facie right:

A right that stands unless displaced by sufficient contrary argument. A party who properly commences proceedings in Australia has a prima facie right to have them heard here.