Girish and Jaya (names changed) met and fell in love while working in Mumbai. After two years of marriage, they migrated to Australia on a permanent residency visa. But life in Australia did not prove to be a bed of roses for them. They decided to go separate ways after 10 years of marriage. But with joint assets in India and Australia and having been married in India, they were not sure if an Australian court would grant them divorce.
Like Girish and Jaya, many couples are faced with this dilemma. According to lawyers Srinivas Maganty and Yen Hua Tan you are eligible to apply for divorce in Australia? Yes, because your marriage will generally be recognised in Australia if your marriage was valid under Indian laws.
To make an application for divorce in Australia, Magantu and Tan cite the following criteria:
Under the Family Law Act 1975 (Cth), you will be eligible to apply for divorce on the ground that your marriage has broken down irretrievably and if you can establish that:
(i) Either you or your spouse regard Australia as your home and intend to live here indefinitely or are an Australian citizen by birth, descent or grant of citizenship or ordinarily live in Australia and have done so for the past twelve (12) months before filing for divorce; and you have been separated from your spouse for twelve (12) months before you apply for the divorce (you can be separated while living under one roof); and
(ii) You have been married for more than two (2) years. If you have been married for less than two (2) years, then a counselling certificate needs to be obtained or leave must be sought from the Court to dispense with the need for the counselling certificate.
(iii) If there are children of the marriage or stepchildren to whom the Family Law Act 1975 (Cth) applies, the court will only grant a divorce if it is satisfied that proper arrangements are made for the care, welfare and development of the children. This means providing information about who they live with, spend time and communicate with, the provision of financial support, their health and education.
The court will make an order if it is satisfied that there is no reasonable likelihood of a resumption of cohabitation.
If both parties to the marriage consent to the divorce, a joint application for divorce may be made to the Federal Circuit Court (“Australian Court”) subject to the requirements above.
If your spouse lives inside or outside of Australia and is not prepared to sign a joint application for divorce, you may still be able to make an individual (solo) application for divorce to the Australian Court provided you meet the requirements listed above. Your spouse (the respondent in the divorce application) may contest the solo application for divorce on the grounds of jurisdiction or on the basis that the requirements for divorce were not met e.g. separation was less than twelve (12) months.
If your spouse is likely to contest your divorce application on the ground of jurisdiction, it is important to consider those jurisdictional matters before making your application, in order to ensure that you are able to obtain the outcome you are looking for.
Is Australia the appropriate forum for the divorce?
Maganty and Tan, say “You may generally institute proceedings as long as you can comply with the requirements listed above.
“However, if jurisdiction is challenged in the divorce proceeding, the court must consider whether or not an Australian Court is an appropriate forum for seeking divorce. The Court will apply the test of whether it is a “clearly inappropriate forum” in which to determine the divorce proceedings and will consider whether another forum is available in India which has and can exercise jurisdiction in proceedings for a divorce.
“In determining whether the Australian court is the appropriate forum to hear the divorce proceedings and whether the Australian court has jurisdiction to grant the divorce order you are seeking, the court considers a number of factors, including whether:
● There are family related proceedings already on foot in India;
● The proceedings in Australia are “oppressive and vexatious” so as to justify a stay;
● The orders made by the Australian courts are recognised in India;
● The issues and matters in question may be better and completely dealt with in India; and
● The ability of the respective parties to participate in the proceedings on an equal footing.
If the court finds that the Australian Court is a “clearly inappropriate forum”, the divorce proceedings are likely to be stayed and you may only be able to seek a divorce in India.
“This again poses another issue, as the grounds for divorce in Australia and India differ greatly, and you may not have a basis to obtain a divorce in India on the Indian grounds for divorce.”
Recognition of the Australian Divorce order
In the event that an Australian Court grants a divorce, the order may or may not be recognised or valid in India, depending on the circumstances.
The Indian Code of Civil Procedure 1908 permits the recognition of a foreign judgment as long as the order is final and conclusive. However, the foreign judgment (e.g. Australian divorce order) will not be considered conclusive under this Act if the foreign judgment fails to recognise and apply the relevant Indian law.
If the parties were married under the Hindu Marriage Act, only grounds under the Hindu Marriage Act for divorce would be relevant and applicable. Accordingly, a divorce granted on any other grounds (such as irretrievable breakdown of marriage under Australian law) would not be recognised in India unless the exceptions set out below are met.
The Supreme Court of India has held that an Australian Divorce Order is only recognised in India if the following exceptions apply:
● You file for divorce if your spouse in domiciled in Australia and the ground upon which the divorce is granted is a ground for divorce under Indian law; or
● You file a joint divorce application in Australia in which your spouse consents to an order for divorce; or
● Your spouse voluntarily and effectively submits to the Australian jurisdiction and contests the application on a ground under the Indian law.
It is important to note that the only ground for divorce recognised in Australia is a no-fault ground of “irretrievable breakdown” of the marriage.
The grounds of divorce under section 13 of the Hindu Marriage Act include, but are not limited to adultery, cruelty, conversion, unsoundness of mind, virulent and incurable leprosy, entering new religious order, presumption of death, non-compliance with judicial separation order or decree of restitution of conjugal rights. The Hindu Marriage Act does not include “irretrievable breakdown” as a ground for divorce.
Whilst you can apply for divorce in Australia, you should bear in mind the foregoing issues in relation to jurisdiction that may arise. We would therefore recommend seeking legal advice before proceeding with your matters in the Australian courts.
By Srinivas Maganty and Yen Hua Tan
Disclaimer: The following is not comprehensive, does not constitute legal advice, is not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters or concerns you may have.