Legallink | Find the Right Law Firm for You | Having married in Sydney but subsequently relocated abroad, I find myself in the process of divorce. I require clarity on the necessity of my physical presence for the legal proceedings and the procedures for managing this matter remotely.

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My spouse and I are in an international marriage. After registering our marriage in Sydney, I returned to my country. Now we are planning to divorce, but I am not in Australia. I need to know whether I need to attend the divorce proceedings in person and how I should handle this situation.

In an international marriage where one spouse is not currently residing in Australia, attending divorce proceedings in person may not always be necessary. Here's what you should know and how you can handle this situation:

1. Legal Representation: You have the right to appoint a lawyer to represent you in the divorce proceedings in Australia. Your lawyer can attend court hearings on your behalf, submit necessary documents, and advocate for your interests.

2. Communication: Maintain open communication with your lawyer and stay informed about the progress of the divorce proceedings. Your lawyer can provide guidance on the requirements and procedures for divorcing in Australia, including any documents you need to provide or actions you need to take.

3. Consent Orders: If you and your spouse are in agreement regarding the terms of the divorce, such as property division and child custody arrangements, you can apply for consent orders through the Family Court of Australia. This allows you to formalize your agreement without the need for a court hearing.

4. Remote Participation: In some cases, the court may allow you to participate in court proceedings remotely via video conferencing or teleconference. Your lawyer can request this option if attending in person is not feasible.

5. Document Execution: Ensure that you can sign and execute any required legal documents, such as consent orders or affidavits, from your location outside Australia. Your lawyer can advise you on the process for signing and witnessing documents in accordance with Australian legal requirements.

6. Legal Advice: Seek legal advice from a family lawyer experienced in international divorces. A lawyer can provide personalized guidance based on your specific circumstances, including any applicable laws in your country of residence and how they intersect with Australian divorce laws.

7. Stay Informed: Stay informed about any deadlines or requirements related to the divorce proceedings, and promptly respond to any requests or communications from your lawyer or the court.

By working closely with a lawyer and staying proactive in managing the divorce process, you can effectively navigate the legal requirements and protect your interests, even if you are not physically present in Australia.

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Date

27 April 2023

Place

MELBOURNE

Judge

WILSON

Highlights

1) The represented third parties have applied to summarily dismiss the intervenors’ participation in this litigation. 2) The represented third parties contend that the intervenors do not presently assert that the applicant's former husband, Mr Jess Snr, immediately prior his death, held any units in the JRUT in his own name. 3) In such cases, there may be times when a court concludes on the material available and often upon an ex parte application that prima facie there is jurisdiction and that the circumstances point compellingly to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted. 4) Those reasons address several applications brought subsequent to the dismissal of the appeal in Jess & Jess (No 3)[1] following my decision in Jess & Jess (No 4).[2] 5) The represented third parties have applied to summarily dismiss the intervenors’ participation in this litigation. 6) The represented third parties further contended that the intervenors do not presently assert that the applicant's former husband, Mr Jess Snr, immediately prior his death, held any units in the JRUT in his own name. 7) In such cases, there may be times when a court concludes on the material available and often upon an ex parte application that prima facie there is jurisdiction and that the circumstances point compellingly to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted. 8) Baron Parke stated "the bankruptcy statute transfers not all rights of actions but those would-be assets in the hands of executors for payment of debts all of which could be turned to profit." 9) French CJ and Gummow J held in Spencer v The Commonwealth of Australia that "the cautionary note sounded by Lord Hope of Craighead is amplified where the summary dismissal application requires consideration of apparently complex questions of fact." 10) Pursuant to s 80(1)(d) of the Act, accordingly, pursuant to s 80(1)(d), it ought execute any necessary instruments or documents such that ownership of Husband's Unitholding be recorded to be held in name of Interveners, with retrospective effect.

Judgment

The application made by the represented third parties in paragraph 1 of their application in a proceeding dated 20 January 2023 for the summary dismissal of the intervenors’ cross claim dated 11 November 2022 is dismissed. The application made by the represented third parties in paragraph 2 of their application in a proceeding dated 20 January 2023 for the dismissal of the intervenors’ cross claim on the basis that it has no reasonable prospect of success is dismissed. The application by the represented third parties for the dismissal of the intervenors’ cross claim made in paragraph 3 of their application in a proceeding dated 20 January 2023 under s 45A of the Family Law Act on the basis that it is an abuse of process is dismissed. The represented third parties’ application for orders suspending the obligation of the represented third parties to give disclosure in respect of documents subsequent to 2009 is refused. Leave to the intervenors to amend their cross claim in the form of exhibit AK1 to the affidavit of Mr AK sworn on 17 February 2023 is granted. I direct that on or before 4:00pm on 12 May 2023 the parties must bring in an agreed minute in relation to pleadings on the intervenors’ amended cross claim.

Other FAQs You may Interested In

1. Despite reaching a settlement post-divorce, I suspect my former spouse may be concealing assets. I seek clarification on the procedures for uncovering undisclosed assets and the legal avenues available to safeguard my interests.2. My husband and I have been married for 25 years in Melbourne, where I’ve been a full-time homemaker caring for our family and children, while he works as an engineer and is the primary breadwinner. If we decide to divorce, is he required to pay me spousal support?3. have observed instances of my ex-spouse intruding upon my privacy post-divorce, raising concerns of potential legal violations. I am interested in understanding the legal protections available to safeguard my privacy rights during divorce proceedings and potential actions to address this behavior.4. My spouse and I jointly own a property in Sydney, yet we are unable to reach an agreement on its division. I am seeking clarification on the legal procedures involved in asset distribution during divorce proceedings, as well as the rights and obligations associated with it.5. My spouse and I operate a business together in Sydney, and with our impending divorce, I am seeking guidance on the equitable distribution of shared business assets and liabilities. Additionally, I seek advice on protective measures for my own interests during this process.

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