The Family Law Act in Australia provides where parties to a marriage are granted a “divorce order”, an application to divide their assets must be made within 12 months of the “divorce order”, unless, the parties otherwise consent to an order or leave of the Court is granted.
However, what is the situation where parties are divorced overseas, 12 months has lapsed since their divorce and they are still to divide their jointly owned Australian property?
This was the dilemma that faced the trial judge in a recent case of Anderson & McIntosh (2013). The short facts of this case were, the parties married in 1988 in Queensland. They moved to Argentina in 2006. The parties during the course of their marriage had purchased property both in Australia and in Argentina. Their marriage irretrievably broke down. In 2010 the parties divorced in Argentina. The parties reached an agreement as to how their property in Argentina was to be divided but no agreement nor orders were made in relation to the property owned in Australia. In 2012, the wife made an application to the Family Court in Australia to divide the property the parties owned in Australia. This was outside the period of 12 months and she did not obtain leave of the Court to make this application. The husband sought that the wife’s application be dismissed as the time limitation had lapsed and prior leave of the Court was required prior to the wife making an application for the division of property.
The trial judge determined that leave of the Court was not required in these circumstances as the judge held the time limitation does not apply to an overseas divorce and that no part of the Australian legislation indicated the term inferred in the “divorce order” should apply to a divorce granted overseas.
The husband appealed to the Full Court of the Family Court.
The Full Court of the Family Court sitting at Brisbane held that there was no error at law by the trial judge and that the wife’s original application be granted.
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