With the increase of Gold Coast residents moving overseas, particularly after a relationship breakdown, the question often arises in the practice of Family Law of, ‘how can we deal with Australian property whilst residing overseas?’
Australia is not privy to any international agreements or conventions recognising and/or enforcing foreign Family Court orders in Australia in relation to the adjustment of property interests between spouses (aside from orders pertaining to spousal and/or child maintenance).
The reasons being international court orders made in specified countries are ordinarily enforced in Australia under the Foreign Judgements Act 1991, however for family law orders, Section 3 of the Act specifically excludes orders relating to matrimonial matters (i.e., family law orders between spouses).
Accordingly, foreign property settlement orders are not reciprocally enforceable between Australia and foreign jurisdictions, because where a property proceeding concerns immoveable property, the court of the country where the land is situated maintains exclusive jurisdiction. However, if the property settlement order can be categorised as spousal and/or child maintenance then international recognition and subsequent enforcement may follow.
By way of example, we were recently presented with orders issued by the Family Court of the United Kingdom ordering for two matrimonial properties in Hope Island and in Paradise Point on the Gold Coast, with a combined worth of over $1million dollars, to be transferred to the wife.
The parties had spent significant amounts disputing the division of the property pool (including the Gold Coast properties), with both parties United Kingdom lawyers overlooking the limitations of enforcing international property orders in Australia. Consequently, the parties are now faced with the unfortunate decision of whether to issue property proceedings in Australia, which may result in significant legal fees, in order to avoid stamp duty fees of over $40,000.00. This is due to the fact that the exemption of stamp duty on transactions that give effect to a court order pursuant to the Family Law Act 1975 will not apply to foreign Family Court orders.
Should you have any queries or require any assistance with the enforcement of foreign Family Court Orders, please contact our experienced Gold Coast Family lawyers on 07 5563 8970 to discuss your individual queries.