A common issue in family law property proceedings is the inclusion and relevance of
properties, assets and money which are held overseas. Family law property proceedings
can sometimes involve more than one jurisdiction – for example Australia and another
country – and as a result, become complex and difficult to navigate.
Determining the assets
As part of the family law property process, parties are required to provide full and frank
disclosure of their financial circumstances.
Both parties have an obligation to disclose all assets, liabilities and financial resources
which are relevant to them, in Australia and overseas.
If a party does not provide full and frank disclosure, this may result in consequences for
the non-disclosing party. This could include an adverse inference being drawn against
them by the Court, or a finding in favour of the other party.
In the instance of non-disclosure, a party may have access to documents or issue
subpoenas which discover the non-disclosed assets.
This assists the parties and the Court to determine the actual asset pool which is
available for division.
Types of overseas assets
Foreign assets can include:
1. Real estate;
2. Bank accounts;
3. Businesses;
4. Shares;
5. Pensions and/or superannuation.
Valuing overseas property
Once the asset pool has been determined, the parties will need to confirm whether there
are any foreign assets which need to be valued. This is an important step because the
systems and processes of other countries can be different from Australia.
There may even be assets which are conceptually different – for example
superannuation interests/pensions overseas are often different from the approach taken
by Australia and may need to be valued.
It may be necessary to engage a third party who is local to that country to assist with any
valuations or enquiries that may need to be made overseas.
Approach taken by the Court
Generally speaking, the Court will only consider dividing assets if it has the jurisdiction to
do so, however the approach taken by the Court will depend on the circumstances of the
matter.
If the Court is dealing with overseas assets, a relevant consideration is whether that
country will recognise Australian final property orders. A Court may make an order that
alters property interests overseas – for example, an order for the transfer of an overseas
property – if it is satisfied that the Courts in that country will recognise that order.
Should the Court not consider it appropriate to make orders which alter property
interests overseas, the Courts can make orders that adjusts the property interests in
Australia, taking into account the benefit one party has to overseas assets without
actually exercising jurisdiction over those assets.
Enforcement
If a final property order is made that deals directly with overseas assets, the
enforcement of those orders can be difficult. It may be the case that property orders
made in Australia are not recognised overseas and further court action may be required
overseas.
It is therefore important to consider the best jurisdiction to bring forward an action for a
property settlement, for example – whether it is one country or both.
If family law legal action regarding the same relationship is brought in two countries, the
parties should seek advice from an appropriately qualified legal practitioner. It may be
the case that the parties are in effect seeking the same property settlement twice in two
different jurisdictions. This could then have an impact on one or both of those
applications.
Next steps
If you or someone you know wants more information or needs help or advice with their
family law matter, please contact our Intake team on (03) 8415 5600 or email us at
reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any course
of action.