For an international family, the first strategic question on separation is often not “who gets what” but “which country decides“. The answer can change the outcome by millions of dollars, because Australia, mainland China, Hong Kong, Singapore and Malaysia divide property in very different ways. It also affects cost, speed, language, privacy and whether the final orders can actually be enforced.
When can an Australian court hear the case?
Australian courts can hear property proceedings between married couples if, when the case is filed, either party is an Australian citizen, is ordinarily resident in Australia, or is present in Australia. That is a low threshold: many international families can satisfy it even if most of their life and wealth is overseas.
For de facto couples the rules are stricter. Generally at least one party must be ordinarily resident in Australia when the case is filed, and there must be a substantial connection with Australia during the relationship, such as both parties living here for at least a third of the relationship or substantial contributions made here. There are also threshold requirements about the length of the relationship, children or contributions. (See our article De facto or just co-owners?)
Divorce itself has a separate test: one party must be an Australian citizen, domiciled in Australia, or ordinarily resident here for at least 12 months before filing, and the parties must have been separated for at least 12 months.
Why the choice of country matters
Consider a couple who married in Shanghai, moved to Melbourne fifteen years ago and own a home in Melbourne, apartments in Shanghai and a manufacturing business in China held through a Hong Kong company. Much of the business was built before the marriage, with help from the husband’s parents.
- A PRC court would generally focus on joint property acquired during the marriage, may treat pre-marital and parental-funded assets as separate, and may have limited practical reach over the Melbourne property.
- An Australian court would look at all property of both parties anywhere in the world, assess contributions over the whole relationship (including homemaking and parenting), and then consider future needs such as earning capacity, age, health and care of children.
- A Hong Kong court would apply its own sharing principle, often starting from equal division of matrimonial assets with adjustments.
None of these systems is “better” in the abstract. The right forum depends on where the assets are, how they were acquired, who contributed what, and where orders will need to be enforced.
Competing proceedings: what happens if both countries are involved?
It is common for one spouse to file in Australia and the other in China, Hong Kong or Singapore. An Australian court will not simply defer to the overseas court. Under Voth v Manildra Flour Mills and Henry v Henry, the Australian court will generally only stay (pause) its proceedings if Australia is a clearly inappropriate forum. Factors include:
- the connection of the parties and children with each country;
- where the property is and where evidence and witnesses are;
- which proceedings were started first and how far they have progressed;
- whether the overseas court can deal with all the issues and all the assets;
- whether an overseas order will be recognised and enforced in Australia, and vice versa; and
- whether either party has a legitimate advantage, or is being treated unfairly, in one forum.
In appropriate cases the Australian court can also grant an anti-suit injunction restraining a party from continuing proceedings overseas, although this is used sparingly because it affects comity between courts.
Divorced overseas, property in Australia
A divorce granted in mainland China (including an agreement divorce, 协议离婚, registered at a civil affairs office), Hong Kong, Taiwan or elsewhere is generally recognised in Australia if one party had a real connection with that country. Recognition of the divorce does not end the matter: if the overseas agreement or judgment did not properly deal with Australian property, a party may still be able to bring property proceedings here. The overseas agreement is relevant evidence but is not automatically binding on an Australian court. The 12-month time limit that applies after an Australian divorce does not strictly apply to an overseas divorce (Anderson & McIntosh [2013] FamCAFC 200), but delay still carries risk.
We cover this in detail in Divorced in mainland China, property in Australia and Hong Kong divorce and Australian property.
Enforcement: think about the end at the beginning
The best order is useless if it cannot be enforced where the assets are. Before choosing a forum, consider:
- Mainland China: PRC courts can recognise foreign divorces, but recognition and enforcement of foreign property orders is more uncertain and depends on PRC rules on treaties and reciprocity. It is often practical to obtain orders that operate on assets in Australia, or for each party to transfer PRC assets through agreed steps.
- Hong Kong: Hong Kong has its own legislation and procedures for recognising overseas matrimonial orders and judgments, and Hong Kong courts have power to grant financial relief after an overseas divorce in some cases. Local advice is essential.
- Singapore and Malaysia: each has its own regime for recognising foreign family orders and for applying for financial relief after a foreign divorce.
Where enforcement overseas is uncertain, Australian courts can and do adjust the division of Australian assets to reflect overseas assets that one party keeps.
Strategic steps
- Get advice in each relevant country early, ideally coordinated by one lawyer who understands the overall picture.
- Do not ignore overseas proceedings. If you are served with a summons from a PRC or Hong Kong court, deadlines may be short, and failing to respond can make it harder to argue that Australia is the right forum.
- Do not rush to file overseas without Australian advice. Starting the “wrong” proceedings can waste money and may affect your position in Australia.
- Consider a negotiated cross-border settlement that is documented properly in each jurisdiction. This is often faster and more certain than litigating in two countries.
Frequently asked questions
My spouse has filed for divorce in China. Can I still go to court in Australia?
Possibly. If the Australian court has jurisdiction, you may be able to file property proceedings here and ask the court not to defer to the Chinese case. Act quickly and get advice; timing can be important.
Is a Chinese divorce agreement binding in Australia?
The divorce itself is usually recognised. A property agreement made in China is not automatically binding on an Australian court, but it can be strong evidence of what the parties intended. To make it binding here, it usually needs to be formalised as consent orders or a financial agreement.
Can I get divorced in Australia if I married overseas?
Yes, if you meet the Australian divorce requirements. Where you married does not matter, but you will need your marriage certificate and a certified translation if it is not in English.
How we can help
We advise families with connections to Australia, mainland China, Hong Kong, Taiwan, Singapore and Malaysia on choosing the right forum, responding to overseas proceedings, and documenting cross-border settlements so they work in each country. We work in English, Mandarin and Cantonese, and coordinate with lawyers in other jurisdictions.
To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry.
Related reading
Justin Chua 蔡智勋, lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. The law of other countries is summarised in general terms; you should obtain advice from a lawyer qualified in that jurisdiction.
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