Updated 25 October 2026
CM Law's Ultimate 50 List - Separated Couples FAQ #21: What are the legal considerations for international separations?
An international separation can involve a Sydney home, an overseas business, children living between countries and court proceedings in more than one place. The first task is to establish which courts can deal with each issue and whether their orders will work where they are needed.
Divorce, property settlement, parenting arrangements and financial support are separate legal questions. Resolving one does not necessarily resolve the others. This article explains the main considerations for families connected to NSW; individual circumstances and the other country’s laws require advice.
1. Establish jurisdiction before choosing where to file
Family-law proceedings for NSW families generally belong in the Federal Circuit and Family Court of Australia, applying the Family Law Act 1975. The location of the wedding alone does not determine which court should resolve every aspect of a separation. Jurisdiction must be checked separately for divorce, financial claims and parenting proceedings.
The Court’s divorce guidance explains that either spouse must satisfy the Australian citizenship, domicile or ordinary-residence requirements. One route requires ordinary residence here for the 12 months immediately before filing. Divorce also requires at least 12 months’ separation and no reasonable likelihood of resuming married life.
Where proceedings could occur in two countries, obtain advice before filing or responding. Being first to file does not automatically secure the preferred forum. An existing overseas case, the parties’ connections and the relief available may affect whether Australian proceedings continue. De facto financial claims have their own eligibility and geographical requirements.
2. An overseas divorce may leave financial claims unresolved
In Clayton v Bant [2020] HCA 44, the parties married in Dubai and lived in Australia and the United Arab Emirates. Following separation, the wife pursued Australian property and spousal-maintenance claims. The husband obtained a Dubai divorce and argued that it prevented those claims from proceeding.
The High Court unanimously allowed the wife’s appeal against orders permanently stopping her Australian financial proceedings. The Dubai proceedings had not determined rights sufficiently corresponding to those Australian claims to bar them. The High Court did not decide the eventual property division or maintenance award.
The lesson is to examine exactly what a foreign judgment determines. Recognition of divorce status, recognition of financial decisions and enforcement of orders involve different questions. This decision does not permit parties to disregard overseas proceedings or assume every foreign judgment leaves Australian claims open.
3. Identify overseas assets and practical enforcement limits
Prepare a complete record of Australian and overseas property, debts, income and financial resources. Include real estate, bank accounts, shares, business interests, trusts, pensions and digital assets. Record ownership, country, currency, supporting documents and any restrictions on transfer. A relative’s name on a title may require investigation into the true ownership arrangement.
Australian financial proceedings can consider overseas assets, but an Australian order does not automatically transfer foreign land or bind a foreign bank. Advice in the asset’s country may be needed about recognition, registration, transfer documents and enforcement. Foreign pensions also require specific advice; Australian superannuation-splitting rules cannot simply be assumed to apply.
Value assets consistently and consider exchange rates, sale expenses and relevant tax liabilities before comparing settlement options. Where assets may be dissipated, seek urgent advice about protective orders in the appropriate country. Moving money overseas does not remove the obligation to disclose it.
For example, a hypothetical couple may propose that one keeps their Sydney home while the other receives an overseas apartment. Before agreeing that the properties are equivalent, they need reliable valuations, mortgage balances and advice about whether the foreign title can actually be transferred. A settlement should specify the documents, deadlines and responsibilities needed to complete it. This is an illustration, not a reported court case.
4. Apply the current property and disclosure framework
The property-law changes commencing on 10 June 2025 clarify the assessment of property and liabilities, contributions, and current and future circumstances. Orders must be just and equitable. The economic effect of family violence must be considered where relevant; an international connection does not create an automatic equal division.
Full and frank financial disclosure is an ongoing duty, now expressly contained in the Family Law Act. It applies during negotiations as well as proceedings. Obtain reliable translations and retain original records. Disclose overseas interests even where their value is uncertain, explaining the uncertainty rather than omitting them.
5. Plan overseas parenting arrangements before travel
In Australian parenting proceedings, the child’s best interests are paramount. Safety, the child’s views and needs, and safe relationships with parents and significant people matter. Practical proposals should address schooling, accommodation, travel costs, holidays, communication across time zones and the child’s cultural connections.
Obtain advice and the necessary agreement or court authority before relocating a child overseas. Where parenting orders or proceedings exist, taking or sending a child abroad without the required authenticated written consent or court permission can be an offence. Retaining the child beyond the authorised arrangements can also be an offence. A passport alone does not establish permission to relocate.
If removal is threatened, urgently consider orders restraining travel and the AFP Family Law Watchlist. The Court’s relocation and travel guidance explains these options. Foreign parenting orders need their own recognition or registration assessment; do not assume an Australian order is automatically enforceable abroad.
6. Understand the limits of the Hague return process
The 1980 Hague Child Abduction Convention can provide a process for returning a child under 16 who has been wrongfully removed from, or retained outside, their country of habitual residence. It must be in force between the relevant countries, and the legal requirements must be satisfied.
Return proceedings generally decide where parenting issues should be resolved, rather than determining final parenting arrangements. Return is not guaranteed, and exceptions may apply. Contact the Australian Central Authority promptly if a child has been taken or kept overseas. Where the Convention does not apply, obtain advice about local remedies and available assistance.
7. Deal separately with maintenance and child support
Spousal maintenance generally concerns one person’s inability to support themselves adequately and the other person’s capacity to pay. Child support follows a separate system. Services Australia may assist with international assessments, registration or collection, depending on where the parents and children live and the applicable arrangements.
Check how any agreement or order will be enforced against overseas income or assets. Record payment currency, conversion arrangements and banking costs. A promise to pay from another country should be assessed for practical enforceability before it becomes the basis of a settlement.
8. Coordinate documents deadlines and advice
International matters require careful service of court documents. The applicable rules, destination country and any treaty requirements determine the permitted method. Sending an email does not necessarily constitute valid service. Allow time for translations and proof of service, and respond promptly to documents received from overseas.
Australian property and maintenance applications generally have a 12-month limit after an Australian divorce becomes final. De facto financial applications generally have a two-year limit after breakdown. Permission to proceed late is not guaranteed. Obtain specific advice about time limits where a divorce or proceedings occur overseas.
Give your lawyers in each country the same chronology, court documents and financial records. Coordinate proposed settlements before signing, including any releases of claims. Negotiation or mediation may help where safe and appropriate, but any agreement must be formalised in a way that addresses the relevant jurisdictions.
Ask for a staged budget covering Australian and overseas legal work, translations, valuations and any enforcement steps. Agree who will obtain each document so work is not duplicated. Keep a record of decisions and outstanding tasks, particularly where time zones make communication slower.
Christine Manolakos advises on separation, property settlements and parenting matters through CM Lawyers’ family-law practice. Bring details of every country involved, existing orders and urgent travel or financial concerns to your first appointment. Contact CM Lawyers to discuss the Australian legal issues and where coordinated overseas advice may be required.
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