International Family Law In Australia: Jurisdiction, Assets & Child Relocation

In today’s interconnected world, more families live across borders. People fall in love, marry, have children and build wealth internationally. When relationships break down, however, this global element creates complex challenges, particularly when it comes to parenting arrangements, property disputes and enforcing court orders.

International family law deals with family law matters that involve more than one country. This might involve an Australian parent living overseas with their child, property located in different jurisdictions or divorce proceedings in one country that affect another.

What may seem like a minor international link, such as one party living abroad or assets held in a foreign jurisdiction, can quickly lead to major legal complications. In Australia, international family law covers a wide range of situations. The most common include:

Jurisdictional disputes – where more than one country might have the legal authority to deal with a separation or divorce, and parties disagree over where it should be heard. These cases often come down to which country is the more appropriate forum, and they can involve urgent legal manoeuvring to establish jurisdiction first.
Division of assets held in multiple countries – when a couple owns property across borders, determining what’s part of the asset pool, how it should be divided and whether foreign courts will recognise Australian orders adds significant complexity.
Parental relocation and international custody disputes – one parent may want to move overseas with a child, or a child may already be overseas without consent. In either case, the child’s best interests must be balanced with each parent’s rights and the realities of maintaining meaningful relationships across distance.
Recognition of foreign divorces and court orders – not all overseas divorces or legal decisions will be recognised in Australia. That has serious implications for property settlements, parenting arrangements and even whether someone is legally considered divorced under Australian law.

In these situations, it’s crucial to understand how the Australian legal system interacts with international laws. Even more importantly, it’s essential to act quickly and get legal advice from lawyers with experience in both jurisdictions.

Key Takeaways

International family law issues arise when people or assets are connected to more than one country
Australian courts may not always accept jurisdiction if another country is more appropriate
Property orders made in Australia may not be enforceable overseas, depending on the jurisdiction
Parenting disputes involving relocation or abduction require urgent legal action
The recognition of foreign divorces depends on legal and procedural fairness
Child support and maintenance can be enforced internationally, but only with reciprocal arrangements
Acting quickly helps avoid parallel proceedings in multiple countries

Jurisdiction in International Family Law Matters

Before an Australian court hears a family law case, it must first have jurisdiction. The Family Law Act 1975 sets out when this can happen. A court will usually have jurisdiction if one party is an Australian citizen, is living in Australia or is physically present here when the proceedings begin. But even if jurisdiction exists, the court can still decide not to hear the case.

This is where the principle of forum non conveniens applies. It allows the court to refuse a case if Australia is a clearly inappropriate forum and another country is more suitable.

The leading case is Voth v Manildra Flour Mills (1990). It didn’t involve family law, but the legal principle has been widely applied in family matters. In that case, an Australian company sued a US accountant in New South Wales. The High Court found that although the Australian court had jurisdiction, it should refuse to hear the case because it was a “clearly inappropriate forum” as the dispute had much stronger connections to the US.

This case created the test Australian courts still use today. Courts ask whether continuing the case here would be unjust or oppressive. If so, and another forum is more suitable, the Australian court may decline to proceed.

It was further applied in Henry v Henry (1996), where the High Court ruled that bringing proceedings in Australia was “vexatious and oppressive” when a related matter was already underway in Monaco. The couple had little connection to Australia apart from the husband’s citizenship.

The Family Court will also consider:

Whether the marriage or relationship has a genuine link to Australia
Where the couple lived and where most of their assets are
If there are proceedings already happening in another jurisdiction
Whether the foreign country would recognise and enforce any Australian orders

In the Marriage of Gilmore (1993), the wife filed property proceedings in Australia while the husband did the same in New Zealand. Each party was “forum shopping” to get the most favourable outcome. Neither court stayed the proceedings, which could have led to a legal race to judgment. This case shows how important it is to act fast to establish the most appropriate forum first.

As Nigel Nicholls, co-founder of leading Sydney family law firm Blanchfield Nicholls, noted in his paper International Relationship Breakdown: Parenting and Property Issues:

“It is apparent that by whom the proceedings are brought and in which order they are brought are significant factors to take into account when instituting proceedings in Australia subsequent to international proceedings of the same kind.”

Division of Assets Across Multiple Jurisdictions

When separating couples’ own property in more than one country, dividing assets becomes far more complex. Under section 79 of the Family Law Act, Australian courts have the power to deal with overseas property as part of the matrimonial asset pool. That means property held in another country can be included in a financial settlement ordered in Australia.

The fact that an Australian court has made an order does not guarantee that it will be enforceable in a foreign jurisdiction. Each country has its own rules about recognising and enforcing foreign judgments. Some have reciprocal arrangements with Australia. Others don’t, which can make enforcement difficult or impossible.

This is especially important in cases where both parties initiate proceedings in different countries. When that happens, it often becomes a race to judgment. That is where each party tries to secure a favourable outcome in the jurisdiction that benefits them most.

An example we touched on earlier is in the Marriage of Gilmore (1993). The wife filed property proceedings in Australia. The husband, who was living in New Zealand, started his own proceedings there. Both parties were attempting to take advantage of laws in their preferred country. In New Zealand, for instance, the property in the husband’s name may have been treated as solely his, unlike in Australia, where the Family Court looks at the broader financial relationship. Each court began proceedings and neither granted a stay. If the matter hadn’t settled, the courts could have issued conflicting orders.

This kind of forum shopping creates uncertainty and adds to the emotional and financial stress of separation. It also raises the risk that one country’s judgment may not be enforceable in the other, especially if the legal systems don’t align on recognition of foreign orders.

These disputes are why it’s critical to act early and strategically. Whichever party gets in first may shape the outcome – not because their claim is stronger, but because they filed in a more favourable jurisdiction.

When dealing with international assets, courts also distinguish between:

In personam orders are judgments against a person, such as directing someone to transfer property
In rem orders are judgments directly affecting the property itself

In general, foreign courts are more likely to recognise and enforce in personam orders. This was confirmed in the Marriage of Miller and Caddy (1986). In that case, a Californian court made an order dividing property, including a unit in Sydney. When the wife later tried to reopen the property dispute in Australia, the court declined to hear the matter, ruling that the Californian judgment should be enforced. Because the judgment was directed at the individuals and not simply the property, it was recognised and given effect.

In some cases, competing proceedings create real risk for clients. If one party obtains a judgment and enforces it before the other court can act, the legal and financial position of the other party can be undermined, even if they eventually win their case.

International property disputes require strategic legal advice, careful planning and swift action. Choosing the right jurisdiction early can make a significant difference to the outcome.

Parental Relocation & International Child Custody Disputes

When a parent wishes to move overseas with a child after separation, they must either obtain the written consent of the other parent or seek approval from the Family Court. Relocation cases are among the most complex and emotionally charged in family law, especially when the move involves another country.

How Courts Assess Relocation Applications

Under Australian family law, the primary consideration in all parenting matters is the best interests of the child. In relocation cases, courts weigh a range of factors, including:

The child’s relationship with the non-relocating parent, including the impact that distance would have on maintaining a meaningful relationship.
The relocating parent’s reasons for moving, such as employment, family support or new relationships, and whether the move is genuine or an attempt to sever ties.
The practicalities of maintaining contact, including travel time, costs, communication options and the willingness of both parents to support ongoing involvement.
The emotional and psychological impact on the child, including the effect of moving away from familiar environments or significant relationships.

Courts do not give automatic preference to the relocating parent. The burden lies in demonstrating that the proposed move aligns with the child’s overall wellbeing and development. Alternative parenting arrangements, such as extended holiday visits or increased virtual contact, may be proposed but must be workable and child-focused.

International Child Abduction and the Hague Convention

If a parent relocates overseas with a child without the consent of the other parent or court approval, this may amount to international child abduction. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which aims to ensure the prompt return of children wrongfully removed or retained across international borders.

Under the Convention, the left-behind parent can apply for the child’s return through the Central Authority in their country. However, not all countries are Hague signatories, and even among signatories, enforcement can vary depending on the local courts and legal procedures.

Anti-Suit Injunctions in Parenting and Financial Matters

In some cases, one parent may initiate proceedings in a foreign jurisdiction while similar or overlapping matters are before the Australian courts. This can create uncertainty and the risk of conflicting orders.

To prevent this, an Australian court may issue an anti-suit injunction. This is an order restraining the other party from continuing proceedings in another country. These are typically granted where the foreign proceedings are considered vexatious or oppressive, or where the Australian court is clearly the more appropriate forum.

The Full Court of the Family Court in Dobson and Van Londen (2005) granted an anti-suit injunction preventing a party from pursuing financial matters overseas, noting that parallel proceedings would cause unnecessary cost and delay, and that the issues could be more efficiently resolved in Australia.

Registering and Enforcing Foreign Parenting Orders in Australia

Under Regulation 23 of the Family Law Regulations 1984, certain parenting orders made in prescribed overseas jurisdictions can be registered in Australia and enforced as if they were made locally. To qualify, there must be a sufficient connection to Australia, such as the child or one of the parents being present, ordinarily resident or en route to Australia.

Once a certified copy of the overseas order and a certificate of enforceability are lodged, the Registrar may register the order. Multiple registrations across Australian courts are permitted and may assist with enforcement across jurisdictions.

Likewise, parenting orders made in Australia can be transmitted for registration in a prescribed foreign jurisdiction, allowing local enforcement abroad. This process is supported by administrative cooperation between the courts and central authorities in participating countries.

Lis Alibi Pendens and Competing Proceedings

The doctrine of lis alibi pendens applies where there are existing proceedings on the same issue already underway in another jurisdiction. In such cases, an Australian court must consider whether continuing its own proceedings would be vexatious or oppressive. If so, it may decline to exercise jurisdiction under the principle of forum non conveniens.

This situation most often arises in relocation or custody disputes, where parents seek competing orders in different countries. Acting quickly is critical, as the order in which proceedings are filed can influence which forum takes precedence.

Parental Relocation and International Child Custody disputes are often emotionally charged and legally complex. International relocation and abduction cases can move quickly, which means delays can significantly impact the outcome. If you’re involved in a parenting dispute with international elements, early legal advice is essential. Understanding your rights and acting swiftly can help protect your relationship with your child and avoid drawn-out litigation across borders.

International Divorce & Recognition of Foreign Marriages

Foreign marriages and divorces can be recognised in Australia, but only if they meet the criteria set out in the Family Law Act 1975. Recognition is important because it affects a person’s legal status, rights to property settlement, parenting arrangements and the ability to remarry.

Under Australian law, a foreign marriage will be recognised if it is valid in the country where it took place and does not breach Australian public policy. For example, marriages involving minors, close relatives or polygamous unions are not recognised, even if they are valid in the country of origin. The Marriage Act 1961 (Cth) governs recognition of overseas marriages, while the Family Law Act applies to divorce and related matters.

A foreign divorce may be recognised in Australia under section 104 of the Family Law Act 1975 if certain conditions are met. These include the connection of one or both parties to the jurisdiction where the divorce was granted and whether the process followed principles of procedural fairness.

A foreign divorce is generally recognised in Australia if:

One of the parties was domiciled or habitually resident in the country where the divorce was granted at the time it occurred.
The divorce was issued in the country where the parties last lived together as a married couple.
The legal process followed in the foreign jurisdiction meets Australia’s standards of procedural fairness, including providing proper notice and an opportunity to be heard.

A foreign divorce may not be recognised in Australia if:

One party was not given natural justice, such as not being informed of the proceedings or not being given a chance to respond.
The divorce was granted in a way that is inconsistent with Australian public policy or legal principles.
The marriage itself is not recognised under Australian law. This includes polygamous marriages, marriages involving underage parties or close relatives, or cases where one party did not give genuine consent.

Recognition of foreign divorces is important because if a divorce is not recognised in Australia, the parties may still be considered legally married under Australian law. This can affect their ability to divide property, resolve parenting issues or remarry. Legal advice is essential to determine whether a foreign divorce meets the legal requirements for recognition.

Some countries, such as the Philippines and Malta, do not have laws permitting divorce at all. In these jurisdictions, couples may only dissolve a marriage through annulment or legal separation, both of which can be time-consuming and difficult to obtain. Although these countries do not allow local divorces, they may recognise a foreign divorce if it was validly obtained under the laws of the issuing country. This means that an Australian divorce may still be effective for individuals from these jurisdictions, but there may be complications if local authorities or courts do not recognise the change in marital status.

In other countries, fault-based divorce remains the norm. This requires one spouse to prove the other was responsible for the breakdown of the marriage due to conduct such as adultery, cruelty or desertion. The legal process and grounds for divorce can vary significantly.

For example:

India has different divorce laws depending on religious affiliation and gender. Hindu, Christian and Muslim family laws each have separate provisions. Generally, men and women may rely on similar grounds, such as cruelty or desertion, but in some cases, women must meet higher thresholds to obtain a divorce or access certain entitlements like maintenance.
France allows both fault-based and no-fault divorce. However, if a divorce is contested, the party seeking dissolution must prove that the other spouse committed a fault serious enough to make continued cohabitation impossible. Evidence of misconduct may be required, and the court will decide whether the grounds are sufficient.
In the United States, divorce laws vary by state. Some states, such as California, allow no-fault divorce based on irreconcilable differences. Others may require a mandatory separation period before a no-fault divorce can be granted. Certain states still offer fault-based divorce as an alternative, which can involve proving adultery, abandonment, substance abuse or domestic violence.

Because divorce laws differ so widely across jurisdictions, Australians who have divorced overseas may find that their divorce is not automatically recognised here. This can have serious consequences. If the foreign divorce does not meet the criteria set out in the Family Law Act, the parties may still be considered legally married in Australia. In that case, they may not be eligible to finalise a property settlement or remarry until they obtain a divorce recognised under Australian law.

Even where a divorce is recognised, it does not necessarily settle related issues such as property division or parenting arrangements. A foreign court may not have jurisdiction over Australian-based assets or may not deal with financial matters at all. In these cases, parties may need to bring separate proceedings in Australia to resolve property or parenting disputes.

For these reasons, it is essential to seek legal advice both in Australia and in the foreign jurisdiction where the divorce occurred or is proposed. Understanding how each legal system operates can help avoid future complications and ensure all aspects of the separation are properly resolved.

Enforcement of Australian Family Law Orders Overseas

Enforcing Australian family law orders overseas presents a number of challenges. While Australian courts have jurisdiction to make orders that bind individuals, the reach of those orders beyond Australia depends heavily on the legal systems of the countries involved. Australian court orders – whether relating to parenting, property or maintenance – are not automatically recognised or enforceable in other countries. This means that parties may face additional legal steps or barriers when trying to enforce their rights abroad.

Challenges of Enforcement in Foreign Jurisdictions

The primary difficulty in enforcing an Australian order overseas lies in jurisdictional limitations. Foreign courts are not obliged to enforce Australian rulings unless local law provides a mechanism to do so. Even where enforcement is possible, the process can be time-consuming, expensive and unpredictable. Parties often need to initiate proceedings in the foreign jurisdiction, translate legal documents and comply with that country’s procedural requirements. In some cases, they may also need to prove the Australian court had proper jurisdiction and that the judgment is final and conclusive.

For example, if an Australian court orders a parent living overseas to pay spousal maintenance, pay child support or return a child under a parenting order, the foreign court may still refuse to enforce it. This can happen if the overseas court does not recognise the Australian court’s authority or considers the process to have been unfair.

When Overseas Courts May Refuse to Recognise Australian Orders

A foreign court may decline to recognise or enforce an Australian family law ruling for several reasons. Common grounds for refusal include:

Lack of jurisdiction: The foreign court may find that the Australian court did not have proper jurisdiction over the parties or the subject matter of the dispute.
Procedural unfairness: If the respondent was not given reasonable notice of the proceedings, or did not have a fair opportunity to be heard, the foreign court may consider that natural justice was denied.
Public policy: A judgment may be rejected if its enforcement would contradict the public policy of the foreign country. For instance, an order dividing property in a way that conflicts with local inheritance or matrimonial property laws may not be upheld.
Non-final orders: Interim or provisional orders, or those subject to appeal, are less likely to be recognised.

Because of these barriers, it is often advisable to obtain a ‘mirror order’ in the foreign jurisdiction. That is, a local order that reflects the terms of the Australian order. This ensures the foreign court is actively involved and may assist with enforcement.

Role of the Foreign Judgments Act 1991

The Foreign Judgments Act 1991 (Cth) provides a legal mechanism for the recognition and enforcement of certain foreign judgments in Australia. Although its primary application is to civil and commercial matters, it also applies to some types of family law judgments, particularly financial orders.

The Act allows for the registration of final and conclusive money judgments from superior courts in prescribed foreign countries. Once registered, these judgments have the same effect as an Australian judgment and can be enforced in the same way.

To qualify for registration under the Act, a judgment must meet strict requirements:

It must be a money judgment (e.g. for maintenance or costs), not involving penalties, taxes or fines.
The judgment must come from a court in a country specified in the Foreign Judgments Regulations 1992.
The judgment must be final and enforceable in the originating jurisdiction.

Once registered in an Australian court, the foreign judgment becomes enforceable as if it were an Australian order. This system promotes consistency and fairness between jurisdictions with which Australia has strong legal and diplomatic ties.

However, the Act does not apply to parenting orders or non-monetary judgments. These must be recognised and enforced under other legal frameworks, including the Family Law Regulations 1984, private international law principles or relevant treaties.

International Child Support & Spousal Maintenance

Enforcing child support and spousal maintenance across international borders can be complex, but Australia has several legal mechanisms in place to support these obligations. The ability to enforce or collect payments depends on whether the country involved has a reciprocal enforcement agreement with Australia.

Enforcing Australian Maintenance Orders Overseas

Australia has reciprocal arrangements with a number of countries for the enforcement of child support and spousal maintenance obligations. These arrangements are set out under the Family Law Regulations 1984 and the Child Support (Registration and Collection) Act 1988. If a parent or former partner who is liable to pay support moves to a reciprocating jurisdiction, Australian authorities can register the order in that country, and the foreign agency can enforce the obligation locally.

The Child Support Agency (CSA), now part of Services Australia, handles the enforcement of child support orders within Australia and, in cooperation with overseas authorities, can also collect payments from liable parents living abroad. Similarly, overseas authorities can register and collect Australian orders where permitted under local law.

Countries with reciprocal arrangements include New Zealand, the United Kingdom, the United States, Canada, and various countries in Europe, Asia, and the Pacific. The list of prescribed reciprocating jurisdictions is outlined in Schedule 2 of the Family Law Regulations 1984.

Key International Agreements

Two major international agreements support this framework:

Australia–New Zealand Agreement on Child and Spousal Maintenance (2000): This bilateral treaty facilitates the mutual recognition and enforcement of child support and spousal maintenance orders between the two countries. It provides a streamlined process for registering, varying, and collecting orders and recognises the administrative processes of each country.
Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations (1973): Australia is a signatory to this convention, which establishes uniform rules for the recognition and enforcement of maintenance decisions between member states. It also allows for applications for establishment of maintenance and variations to existing orders.

Together, these agreements help ensure that support obligations continue even when a liable parent moves overseas, provided that they reside in a participating jurisdiction.

Registration of Overseas Maintenance Orders in Australia

Under Regulations 28 to 30 of the Family Law Regulations 1984, overseas maintenance orders from reciprocating jurisdictions can be registered in Australia for enforcement. This includes both final and provisional orders, as long as they are accompanied by the necessary documentation – such as certified copies of the original order, supporting affidavits, and a statement outlining the grounds on which the order could have been opposed.

Once registered, the order can be enforced in Australia as though it were made by an Australian court. The respondent is given notice and has an opportunity to object or seek variation within a specified time frame. However, if no objection is made, the order remains in force and the CSA or relevant court can proceed with enforcement action, such as garnishing wages or intercepting tax refunds.

Enforcement Challenges in Non-Reciprocating Jurisdictions

When a liable parent resides in a non-reciprocating country, enforcement becomes far more difficult. The CSA will not accept an application for registration or collection unless there is an existing court order from that jurisdiction, and even then, the process relies on the willingness and ability of the local courts to act.

In these cases:

Enforcement must often be pursued through private legal action in the foreign court.
The costs and procedural requirements of such actions can be prohibitive.
There is no guarantee the foreign court will recognise or enforce the Australian order.
Delays in enforcement can result in financial hardship for the parent or carer residing in Australia, and may have adverse effects on the wellbeing of the children involved.

In practice, parents sometimes resort to private payment arrangements, though these are not always reliable, particularly if the relationship between the parties is strained. Even when enforcement is technically possible, cooperation between jurisdictions may be limited due to resource constraints, legal incompatibilities, or administrative delays.

Conclusion

International family law matters are among the most complex legal issues a person can face. They involve not only the standard challenges of relationship breakdown but also layers of legal uncertainty, overlapping jurisdictions and unfamiliar legal systems. Whether it’s a dispute over where proceedings should take place, how to divide property across borders, or whether a child can relocate overseas, these cases require careful and prompt attention.

Jurisdictional issues can significantly influence the outcome of a case. The country in which proceedings are brought often determines which laws apply, how assets are treated, and what parenting arrangements are possible. In some cases, one party may act quickly to secure proceedings in a favourable jurisdiction, leaving the other at a disadvantage. This makes timing critical. Delays can lead to parallel court actions, conflicting outcomes, and serious enforcement challenges.

Property settlements become particularly complex when assets are held in different countries. Orders made in Australia may not be enforceable overseas, and foreign courts may not recognise Australian judgments. Parenting matters can be equally fraught. Disputes involving international relocation or child abduction often escalate quickly and require urgent legal intervention to prevent long-term harm or legal stalemate.

The law in this area is not just about knowing Australian family law. It requires an understanding of how foreign jurisdictions operate, whether they will recognise or enforce orders, and how international treaties may apply. No two international family law matters are the same, and advice that works in a domestic context may fall short in cross-border disputes.

For all these reasons, individuals involved in international family law matters should seek legal advice from practitioners with proven expertise in both Australian law and international legal frameworks. Acting early, and with the right support, gives the best chance of securing a fair and enforceable outcome.