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Marriage and Divorce

Australia - Marriage and Divorce



Marriage

Non-residents are legally allowed to get married in Australia. This is good news for any expats who have not yet been granted permanent residents status but who wish to get married in their newly adopted country. Australian laws also allow weddings to take place for those who are holidaying in the country. Unlike some marriages abroad, your wedding in Australia will be legally recognised in the UK. Those from other countries need to check that their marriage status will be recognised in their home country to avoid any complications in future.

Australia currently does not allow same sex marriage, but as the laws are being changed and amended all the time, if you are hoping to marry your partner in a civil wedding in Australia it is wise to check the current status of that law prior to making your arrangements. It is possible however to perform a commitment ceremony for same sex couples. It must be noted that this is not a legal or binding contract as a marriage is. Australia law also states that both of the couple wishing to marry have to be over the age of 18.

A Notice of Intended Marriage must be lodged with whoever will be performing the ceremony. This needs to be done no earlier than 18 months prior to the wedding and no later than one month and one day before the planned wedding date. The form can be downloaded from the website of the Attorney General. Ideally both parties should be in Australia to sign the document but if only one party is able to do so, some marriage celebrants (those who will be conducting the wedding) will allow one to sign at a later date as long as it is done prior to the wedding day.

If both parties are overseas when the notice is lodged, for example those wishing to marry while on holiday the then it is possible to sign the notice under the witness of an authorised person, fax it to the office of the marriage celebrant and produce the original document to the marriage celebrant once you are in Australia. Authorised persons include, Notary Public, Australian Diplomat or Consular, and employee of the Commonwealth or an employee of the Australian trade commission.

You must also prior to the wedding produce the birth certificates of both parties. If either party has been previously married then proof that the marriage is no longer legal is needed, for example marriages that have ended in divorce or death of the partner. If a birth certificate is not readily available some marriage celebrants will accept a passport that clearly shows the person’s date and place of birth. Any legal documents that are not in English must be translated by an authorised person and the translation must include a declaration that the document is a true translation of the original and the translator is competent enough to do this.

Divorce

It is legal for couples to get divorced in Australia as long as they are permanent residents or Australian citizens or those who class Australia as their permanent home and intend to live there indefinitely. Expats who have lived in Australia for at least 12 months prior to filing for divorce are also legally allowed to do so. You do not have to have been married in Australia to request a divorce there, but you do need to prove that Australia is your permanent home. To be granted the divorce you will also need to prove that you and your partner have been living separately for at least 12 months and that there is no chance of reconciliation between you. You can be classed as living separately even if you live under the same roof.

You need to file an Application to Divorce with the courts. This can be done as a single applicant (for example you divorcing your partner) or as a joint application (where both parties are requesting the divorce) the application can be done by yourself or if you prefer to engage the services of a lawyer then it can also be done through them.

In cases where there are children under the age of 18 then the courts will only grant a divorce if both parents can prove that adequate care has been arranged for them. This can be where one partner has primary custody or where custody is shared. In either case, as long as the court deems the arrangements sufficient then they are likely to grant the divorce. You do not have to attend court during these proceedings unless there are minor children involved, in this instance both parties should be in attendance during the hearing. It is possible to oppose a divorce but if you have been living separately from your partner for 12 months or more then this is not likely to go in your favour.

In Australia when a couple divorces no decisions are made on the splitting of property or the custody of children. If these issues are relevant to you then you must make a formal agreement over the division of personal possessions and the care of your children and file this with the court. If however you and your partner are unable to agree terms you may seek orders from the court. This must be done within 12 months of the finalisation of the divorce.

Both marriage and divorce in Australia carry fees. Paperwork can be expensive and often every piece you submit will have a charge. These charges can be relatively small but over the course of the proceedings this can add up. This must be taken into account when you are budgeting for your wedding, and likewise when you are planning to submit your divorce request.




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