Published: 09 November 2018
Author: Samuel Fung
Overseas marriages pose thorny issues for family law courts here
The growing numbers of married migrants arriving in Australia is posing some thorny problems in family law courts where both parties are seeking divorce, but in different jurisdictions. For example, does a divorce obtained in Australia trump one made overseas and vice versa, and where one case is commenced ahead of the other, which takes precedence?
These are some of the questions tackled by a recent divorce case that has now been successfully appealed for a new hearing before the Full Court of the Family Court of Australia.
Background to the case
Recently, the Full Court of the Family Court of Australia in the matter of Talwar & Sarai  FAMCAFC 152 examined the issue of the jurisdiction of the Family Court of Australia to grant a divorce order in circumstances where a divorce application has been filed contemporaneously overseas.
The husband, an Australian citizen, had married the wife, an Indian citizen, in India. The parties then submitted an application for a partner visa with the husband as the wife’s sponsor. Thereafter, the husband informed immigration authorities that they had separated, and he withdrew his sponsorship.
The wife subsequently arrived in Australia seeking to reconcile with the husband but was unsuccessful. Following this, the wife returned to India and remained living there. She instituted marriage-related proceedings against the husband and his family in India relating to dowry and domestic violence, amongst other claims. At the time of the Full Court’s decision, these proceedings were pending.
Subsequently, the Husband filed for divorce in Australia. The wife then sought an injunction in the Indian court to restrain the Husband from continuing with his proceedings Australia and for any divorce order granted in Australia to be voided.
The Family Court of Australia granted a divorce order, however an Indian court then granted the injunction sought by the wife.
The wife subsequently applied for review of the granting of the Australian divorce order.
At the time of the hearing before the primary judge, there had not been any divorce application made in India. In summary, the primary judge found that an Indian court is not likely to recognise an Australian divorce order and therefore the consideration was not which forum is more appropriate but whether Australia is a clearly inappropriate forum.
The primary judge found that Australia is not a clearly inappropriate forum.
Further, she found that the outcome of the Australian divorce order, being that the wife would not be recognised in India as being divorced, would be unfortunate for the wife but was not in itself a determining factor. The Australian proceedings were for divorce only and those in India were not divorce proceedings, and there was no bar to the wife continuing the Indian proceedings notwithstanding an Australian divorce order has been made. She found that the parties are unlikely to have an avenue to secure a divorce in India.
The primary judge also considered the order in which the Australian and Indian proceedings were issued and their current status, as well as whether the parties are able to participate in the respective jurisdictions on an equal footing.
The wife subsequently applied for review of the Australian divorce order on the ground that Australia was a clearly inappropriate forum, in circumstances where the marriage had taken place in India and the parties did not have children nor property in Australia.
Further, she submitted that it should have been taken into account the fact that she had commenced marriage-related proceedings in India prior to the husband filing the Australian divorce application and that granting a divorce order in Australia would affect those proceedings.
On appeal to the Full Court, the Court found that:
- The primary judge erred in deciding whether an Indian court is likely to recognise an Australian divorce order as she did not rely on expert evidence in making her finding.
- On the face of Indian marriage laws, a divorce was available in India, at least on the application of the Wife and, as a result, complete relief was available to the parties in the Indian proceedings, as compared to the Australian proceedings only being able to resolve the issues of divorce and possibly maintenance.
- The primary judge had placed undue emphasis on the Husband’s “prima facie right” to proceed with his proceedings in Australia.
- The primary judge had ignored the injunction against the Husband continuing with his Australian divorce application and no proper regard was given as to the effect of the Australian divorce order on the Wife, who would not be divorced in India and who continued to live in India.
The appeal was allowed and the matter was remitted to the Federal Circuit Court for rehearing.
The full judgement of Talwar & Sarai  FAMCAFC 152 can be found here.
Given the increasing number of migrants relocating to and from Australia, it is anticipated that there will be a rise in divorce hearings before the Family Court of Australia which involve marriages that were registered overseas.
While the present case presents a particular fact scenario, Australian applicants for divorce orders in the Family Court of Australia will benefit from certainty as to where and how their divorce applications should be determined. There is an urgency for clarity in relation to the issue of foreign jurisdiction in family law matters.
Our Family and Relationships Law Department will be following the above matter for updates.