Can I Get a Divorce if We Live in Different Countries?

Before a divorce application can be filed in Australia, there must be a legal basis for an Australian court to hear the matter. This is referred to as jurisdiction, and it doesn't automatically exist simply because one spouse is an Australian citizen.

Under the Family Law Act 1975, the Federal Circuit and Family Court of Australia has jurisdiction to grant a divorce where at least one of the following applies at the time the application is filed:

• Either party is an Australian citizen (by birth, descent or naturalisation)
• Either party is ordinarily resident in Australia and has been for at least 12 months
• Either party regards Australia as their home and intends to live here indefinitely

If any one of these conditions is met, the court has the authority to proceed — regardless of where the other spouse is currently living. This is an important point for anyone who has remained in Australia while their partner has moved overseas.

Australian divorce law operates on a no-fault basis. There is only one ground for divorce: that the marriage has broken down irretrievably, evidenced by a period of separation of at least 12 months with no reasonable likelihood of resuming the relationship.

When spouses are living in separate countries, the 12-month separation period generally counts from the point at which the parties ceased to live as a couple — not necessarily from the date they moved to different locations. In some cases, parties can even be considered separated while sharing the same residence, provided they have genuinely separated in the sense of their day-to-day lives and relationship.

Relevant considerations for separation across borders include:

• The date physical separation occurred and whether both parties acknowledged it
• Whether any attempt at reconciliation took place within the 12-month period
• Whether the couple previously lived together in Australia before one party relocated
• Whether the separation was mutually agreed or contested by one party

Keeping records — messages, emails, statutory declarations — that establish the timeline of separation can be important if the circumstances are likely to be disputed.

One of the more procedurally complex aspects of an international divorce is ensuring the other party receives proper notice of the proceedings. Australian courts require that the non-applicant spouse be formally served with the divorce application, and when that person is living in a foreign country, this process is governed by both Australian procedural rules and the laws of the country where the other spouse resides.

The process of serving documents overseas is known as service out of jurisdiction, and it must be handled correctly to avoid delays or applications being dismissed.

Key points about overseas service include:

• Australia is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, which provides a framework for serving documents in member countries
• For countries not covered by the Convention, alternative arrangements must be made, which can involve diplomatic channels
• In limited circumstances, a court may grant substituted service — allowing notice to be given by an alternative method such as email — if conventional service is impractical
• The applicant must demonstrate to the court that genuine efforts to serve the other party have been made

Errors in the service process can significantly delay proceedings, so it is important to understand the requirements specific to the country where the other spouse lives.

In some situations, one spouse may have already obtained a divorce order in a foreign country before any Australian proceedings have commenced. Whether that overseas divorce is recognised in Australia depends on specific criteria set out in the Family Law Act.

An overseas divorce is generally recognised in Australia if:

• The divorce was granted in a country where at least one party was domiciled at the time
• At least one party was ordinarily resident in that country for at least 12 months before the divorce was granted
• At least one party was a national or citizen of that country at the time of the divorce

If these conditions are not met, the foreign divorce may not be recognised, which means the parties could still be considered legally married under Australian law. This has significant implications for property settlements, inheritance, and the ability to remarry in Australia.

Divorce itself deals only with the legal end of the marriage. Property settlement — the division of assets and financial arrangements — is a separate legal process, and it becomes considerably more complex when assets are located in multiple countries.

Australian courts can make orders about property that is situated overseas, but enforcing those orders in a foreign jurisdiction is another matter. Each country has its own rules about recognising and enforcing foreign court orders, and in some cases, parallel proceedings may need to be initiated in the other country.

Complications that can arise in cross-border property settlements include:

• Superannuation and pension entitlements held in both Australia and overseas
• Real estate owned in one country where only local courts can issue enforceable title transfer orders
• Business interests or investments subject to foreign corporate and tax law
• Offshore accounts or assets that are difficult to value or locate

Early legal advice is important here, as the structure of how a settlement is approached can affect what outcomes are ultimately achievable and enforceable.

When children are involved in a cross-border separation, the legal and practical stakes are significantly higher. Australian family law is clear that decisions about children must be made in their best interests, but enforcing those decisions when one parent lives overseas is a different challenge entirely.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a mechanism for the return of children who have been wrongfully removed from or retained outside their country of habitual residence. However, not all countries are signatories, which can make recovery extremely difficult.

Where children are involved in an international separation, legal advice should address:

• Whether existing parenting orders made in Australia can be registered and enforced overseas
• How to apply for an overseas travel order if there is a risk of the other parent relocating a child without consent
• The process for applying for a Commonwealth Child Alert, which can flag a child's passport at border control
• How parenting arrangements can be structured to work practically across time zones and different countries

Acting promptly when parenting matters are in dispute is critical. Delays can complicate the legal position and affect outcomes.

In some international divorces, both spouses may attempt to initiate proceedings in their respective countries simultaneously. This is known as parallel proceedings, and it creates a real risk of conflicting legal outcomes — for example, two different courts issuing different property orders, or one court granting a divorce while another considers the marriage still valid.

Australian courts are aware of this risk and may consider whether proceedings are already on foot in another jurisdiction when deciding how to deal with an application. In some cases, a stay of proceedings may be granted to allow a foreign court to resolve the matter, particularly if the other country has a stronger connection to the marriage.

Factors relevant to parallel proceedings include:

• Which country has the closer connection to the marriage, the children, and the majority of assets
• Whether one set of proceedings was commenced first and is further advanced
• The relative efficiency and fairness of the legal systems involved
• Whether the parties have expressly agreed to resolve matters in a particular jurisdiction

Navigating this requires strategic advice about where to file and in what sequence, not simply proceeding in the most convenient forum.

International divorce is one of those areas where the procedural and substantive issues are genuinely intertwined, and where the sequence of steps taken can have long-term consequences. A decision made early in the process — about where to file, how to handle service, or whether to pursue a property settlement in Australia or overseas — can shape everything that follows.

Legal advice in this context is not just about knowing the law. It is about understanding how the different moving parts interact: jurisdiction, separation evidence, asset identification, service requirements, and the recognition of any orders made. Getting that picture clear early on puts a person in a far stronger position to make informed decisions.

Points where legal guidance is particularly valuable:

• Before filing anything, to confirm Australian jurisdiction applies and the 12-month separation period is satisfied
• When the other party is unresponsive or their whereabouts are uncertain
• Where assets in multiple countries need to be identified and valued before any settlement can be negotiated
• When children are involved and there is any concern about their welfare or movement across borders

At EV Law, we work with clients navigating some of the most complex family law matters that arise — including separations where spouses are living in different countries and the ordinary rules simply don't apply in straightforward ways. The Gold Coast has a notably international community, with many residents maintaining ties to countries across Asia, Europe and beyond, which means cross-border family law issues are something we encounter regularly.

Whether you are living here and your spouse has moved overseas, or you have recently returned to Australia after a marriage breakdown abroad, we can help you understand your legal position and what options are available. From clarifying jurisdiction and managing overseas service through to property settlement and parenting arrangements, we provide clear, practical advice at every stage of the process.

If you are looking for a family lawyer on the Gold Coast with experience in international divorce, we welcome you to get in touch. Reach out to book a consultation — the earlier you seek advice, the more options you are likely to have.