Residence Requirements In The Divorce Proceedings

Residence requirements in the divorce proceedings

Many young Indians and for that matter from south East Asia have arrived and continue to arrive in Australia on a student visa. Interestingly the trend recently had been to first get married in the home country and then take the flight together with the spouse to ensure safety and mutual support. However, an increasing number of couples holding student visa/student dependent visa seek to file an application for divorce on the ground o an irretrievably broken marriage.  The question of eligibility and jurisdiction to file for divorce/dissolution of marriage when holding a student/student dependent visa is the point of discussion in the present topic.

The Australian law recognizes a marriage solemnized outside of Australia provided such marriage was valid under the law of the place where it was solemnized. Such marriage is valid marriage for Family law proceedings in Australia. (s88C, 88D and 88EA of the Marriage Act 1961)

An application for divorce/dissolution of marriage in Australian jurisdiction can be made by an applicant who complies with the requirements postulated under s39(3) of the Family Law Act 1975 (the Act). The law requires that on the date on which the application for the orders is filed in the court, either of the party must fulfill one of the conditions being either a. is an Australian citizen; b. is domiciled in Australia or c. is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.

The scope of ‘ordinarily resident in Australia and has been so resident for 1 year immediately preceding the date of filing such an application for divorce/dissolution of marriage seems ambiguous at first reading and subject matter of statutory interpretation. The importance of this clause lies in the involvement of foreign law to the party seeking to invoke the jurisdiction of Australian family law. The party who may be ordinarily a resident of Australia by implication holds the passport and/or the domicile of another country and has married in an overseas country thereby involving a foreign element. The ordinary resident requirement was seen to have been wrongly interpreted by many of us resulting in a disappointment in the court resulting in the application becoming not maintainable for lack of jurisdiction.

The term ‘jurisdiction’ for divorce implies the court having authority to decide with a question arising under the family law in an Australian context and the way Australian family law deals with ‘cases involving a foreign element’ for divorce/dissolution of marriage.

Curiously, the term ‘ordinarily residence’ was defined by the legislation (s4(1) of the Act) to include ‘habitually resident’. For a person to be ordinarily resident in Australia, it must imply something more than merely being residing in Australia. The word ‘ordinarily’ connotes a comparison, a measure of degree given that one may have more than one residence but could not necessarily ordinarily resident in each of them. The concept of ‘ordinarily resident in the Commonwealth of Australia for the Act connotes a place wherein the ordinary course of a person’s life, one regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where one stays only casually or intermittently. The expression ‘ordinarily resident in’ connotes some habit off life and is to be contrasted with temporary or occasional resident per Lockhart J. (1992) 37 FCR 194.

The term ‘ordinarily resident’ is also defined with better clarity by the Australian Citizenship Act 2007 (Citizenship Act) s3 which implies that a person is taken to be ordinarily resident if and only if the person has his or her home in that country or that the country is the country of his or her permanent abode even if one is temporarily absent from that country. It further clarifies that a person is taken not to be so resident if one is residing in that country for a special or temporary purpose only.

The recent trend of divorce applications by the holders of student visas is considered by the court with great caution. In every such case, a requisition is sent to demonstrate the compliance of the ‘jurisdiction’ requirements. We suggest that a considered approach and proper legal advice be obtained before making an application for divorce.

By Gurpal Singh