OVERSEAS REAL PROPERTY IN DIVORCE AND FAMILY PROPERTY SETTLMENT

When engaging in property settlement matters in the Family Court of Australia, it is important to consider all property (real and other assets) held by the parties of the ‘marriage’ or ‘de facto relationship’ as defined in the Family Law Act 1975 (Cth) (the “Act”). Section 31(2) of the Act provides the Family Court may make orders, “in relation to persons or things outside Australia and the Territories.”

Recently a High Court case delved into this issue of jurisdiction and orders relating to real property outside of Australia in Clayton v Bant (2020) 385 ALR 41. The case concerned the dissolution of a marriage between parties who lived in both Australia and Dubai. The wife (Ms Clayton) commenced proceedings in the Family Court seeking, among other things, property settlement under s79(1) of the Act. In the property pool sought to be settled, was real property (land) in Dubai.

At the same time, the husband (Mr Bant) commenced proceedings in the Personal Status Court of Dubai which granted him the equivalent of a divorce in the United Arab Emirates. Mr Bant, attempted to stop proceedings in the Family Court as to the property settlement as a competing court had already made an order (“res judicata”) regarding the property. Even though the case centred around this issue, the High Court clarified that the Family Court’s jurisdiction does extend to make orders regarding property outside of Australia.

As a result, people dissolving marriages and other like relationships in the Family Court of Australia should disclose all assets and property of the relationship even if held outside of Australia when seeking orders to settle property.

If you require advice regarding property settlement and divorce or issues of Family Law, Straits Lawyers are here to help. We are now offering online services in both English and Chinese.

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Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.