International Divorce and Family Law: Australia & England

This page may be relevant to you if you are:

• An Australian citizen living in England or Wales who is considering divorce or separation
• A British citizen married to, or separating from, an Australian citizen
• A couple who married in Australia but now live in England or Wales
• A British expatriate living in Australia while retaining ties to England and Wales
• Part of a family that has moved between England and Australia during the relationship
• A parent whose children live in, attend school in or travel regularly between the two countries
• A spouse with property, pensions, savings, investments, a business or inherited wealth in England and Australia
• Someone concerned about divorce proceedings, an international relocation or the effect of an Australian order in England and Wales

We do not advise on Australian law, but we can assess the English position and work alongside a suitably qualified Australian family lawyer where local advice is required. If your circumstances connect the two countries, contact us as soon as possible so that decisions about proceedings, assets or children are made with the international issues in mind.

Divorce involving England and Australia

Marrying in Australia does not mean that the divorce must take place there. Equally, holding a British passport or returning to England does not automatically give the courts of England and Wales authority to deal with it, either. Jurisdiction depends on legal connecting factors, particularly habitual residence and domicile, which require more than a simple check of nationality or an address.

A marriage validly celebrated in Australia will generally be recognised here, although evidence of the marriage and, in an unusual case, further information about its validity may be required. If one spouse remains in Australia, additional care may also be needed when serving documents and allowing for the time difference and practicalities of participation from overseas.

The divorce application legally ends the marriage, but it does not itself resolve financial claims; it may therefore be necessary to obtain an English financial order.

Deciding where proceedings should take place

Some families have a sufficient connection for divorce proceedings to be considered in both England and Australia. Australian eligibility may arise, for example, through citizenship, treating Australia as home with an intention to live there indefinitely, or a sufficient period of ordinary residence.

The Australian system is also based on no-fault divorce, but it ordinarily requires the spouses to have been separated for at least 12 months before an application can be made. That procedural difference may be relevant, although it should never be viewed in isolation from finances, children, and enforceability.

Where proceedings are genuinely possible in both countries, prompt advice is important. Laurus can explain the English jurisdictional rules and the financial and procedural consequences of proceeding here. An Australian lawyer can advise on the corresponding position there, allowing you to make a reasoned choice rather than beginning a case on a partial understanding.

Financial settlements between England and Australia

Financial proceedings in England and Wales require full and frank disclosure of worldwide resources; Australian property, bank accounts, share portfolios, trusts, company interests, income and liabilities may all be relevant. The English court can consider assets outside the jurisdiction even though further steps may be needed before an English order can be recognised or put into effect in Australia.

There is no safe assumption that the financial result would be identical in both systems. Australia has its own statutory process for altering property interests and dealing with maintenance, and Australian applications can be subject to important time limits after divorce. Coordinated advice helps expose the differences without confusing two legal systems or assuming that an order made in one will automatically do all the necessary work in the other.

Prenuptial and postnuptial agreements

In England and Wales, a prenuptial or postnuptial agreement does not remove the court's discretion to make financial orders during divorce. It may nevertheless carry substantial weight if it was entered into freely, each spouse understood its implications, and it would be fair to hold them to it.

Australia uses its own framework for binding financial agreements, with formal requirements that should be addressed by an Australian lawyer. A document prepared for one jurisdiction should not simply be copied or renamed for the other. Where the couple expects an agreement to work in both countries, coordinated advice can help identify inconsistent terms and decide whether parallel or complementary documents are appropriate.

Children whose lives span England and Australia

The distance between England and Australia changes the practical shape of arrangements for children. A pattern that works between neighbouring countries may be unrealistic when each journey is long, expensive and disruptive. School terms, passports, stopovers, travel insurance, communication across time zones and the child's age can all affect whether a proposal is workable in practice.

To avoid future conflict, an agreement or order may need to address who books and pays for flights, whether a parent travels with the child, the notice required before a journey, video contact between visits, and how changes to school dates or flight schedules will be handled. These details are not peripheral where the parents live on opposite sides of the world, and can determine whether the child's relationship with each parent remains sustainable.

Relocation and urgent child abduction concerns

A parent who wishes to move permanently from England and Wales to Australia with a child will usually need the consent of every person with parental responsibility or permission from the court. The court will examine the individual child's welfare and the quality of the relocation plan, including housing, education, healthcare, immigration status, finances and the arrangements proposed for the parent who remains behind.

The same need for early advice applies if a parent wants to return to England with a child who is living in Australia. A parent should not assume that a return to their own country is legally uncomplicated. Taking or keeping a child across an international border without the required consent may lead to urgent child-abduction proceedings.

England and Australia participate in the 1980 Hague Convention framework for the return of children who have been wrongfully removed or retained. The legal route depends on the facts, and action may be required in both countries. If travel is imminent or a child has already been taken, Laurus can advise urgently on the English steps and coordinate with Australian lawyers and the relevant authorities.

Distinctive features of Australian family law

Australia's family law framework is principally federal, with divorce and most family-law matters dealt with under the Family Law Act 1975, although court structures and the position in Western Australia create procedural distinctions that local advice may need to address. Australian no-fault divorce requires proof of an irretrievable breakdown demonstrated by at least 12 months' separation.

A divorce in Australia does not decide property division, financial support or parenting arrangements. Once an Australian divorce becomes final, a 12-month time limit generally applies to starting property or financial proceedings unless permission is obtained.

Australian property cases do not begin and end with a presumption that everything will be divided equally. Local practitioners consider the parties' property, liabilities and salary, their contributions and the statutory factors affecting a fair outcome.

Contact Laurus

A family matter involving England and Australia needs advice that works across distance as well as on paper. Laurus can advise on the English side of the divorce and any associated disputes, while coordinating with Australian professionals where their input is required. Early advice can protect your options, identify urgent risks, and prevent avoidable difficulties with assets or orders overseas.

Contact us now to request a consultation with one of our specialist family solicitors.