Family Law and Divorce

If you or your former partner own property outside Australia, separating raises extra questions: does it count, how do you find out what exists, and can an Australian court order actually be enforced overseas? Here are three things to know.

Tip 1: Overseas assets are part of your property settlement

Australian family courts can deal with either party’s property wherever it is located. A house in another country, a foreign bank account, shares in an overseas company, or an offshore inheritance can all be part of the asset pool, along with any overseas debts.

It doesn’t matter how you acquired the asset. Property owned before the relationship, bought during it, or inherited from overseas family is still included in the pool, although how it was acquired is relevant to each party’s contributions. Read more about how property settlements are decided.

Tip 2: Get organised, and get full disclosure

Start by putting together a summary of everything you and your former partner own and owe, in Australia and overseas. Useful documents include:

• property titles, deeds, and valuations for overseas real estate
• statements for foreign bank, investment, and pension accounts
• loan and mortgage statements, wherever held
• company and trust records for overseas entities
• tax returns in each country where income is earned.

If you don’t know exactly what your former partner owns overseas, that is common. Both parties have a legal duty under the Family Law Act 1975 (Cth) to fully and frankly disclose all their assets, liabilities, and financial resources, including those held overseas. Your lawyer can request disclosure, issue subpoenas to Australian institutions, and, through overseas colleagues, help locate and verify assets abroad. Courts can draw adverse inferences against a party who hides assets. Read more about how hidden assets are uncovered.

Tip 3: Plan for the international issues early

Settlements involving overseas property raise issues that purely domestic ones don’t:

• Enforcement. An Australian court can order a party to sell or transfer overseas property, but whether a foreign court will recognise that order depends on the law of that country. Settlements are often structured so they work in practice, for example by adjusting Australian assets to reflect the value of overseas ones.
• Proceedings in more than one country. If your former partner starts proceedings overseas, the Australian court may need to decide whether Australia is a clearly inappropriate forum, following the High Court’s approach in Henry v Henry (1996). Acting promptly can matter.
• Different property laws. Some countries have community property or other matrimonial property regimes. A prenuptial agreement made overseas may not be binding in Australia unless it meets Australian requirements.
• Valuation, currency, and tax. Overseas assets need local valuations, currency movements can change their value, and selling or transferring them can have tax consequences in both countries.

Time limits also apply. Married couples generally have 12 months from the divorce order to start property proceedings, and de facto couples two years from separation.

Koffels’ family lawyers work alongside our commercial and cross-border teams, and through our membership of IR Global and Lawyers Associated Worldwide we work with lawyers overseas to obtain local advice and, where needed, act in foreign proceedings. Read more about cross-border and international family law.

Frequently asked questions

Talk to us

If you are separating and you or your former partner own property overseas, call 02 9283 5599 or use the form below for a confidential discussion.