If you are looking for information regarding what happens to assets that are in overseas locations during property settlement in Australia, then this blog may be helpful for you. With more people investing in properties overseas thanks to growing access to information and purchasing power, there is a need to know how overseas assets are handled during property settlement in Australia. Let us get started!
Before proceeding further, let us see a few examples of overseas assets. X and Y are married in Australia and have assets in country A. They now decide to divorce. Another example is X and Y are married and divorced in country A and have now moved to Australia. Whatever the case may be, it is advisable to seek an enforceable agreement in the jurisdiction where the assets are located. This is recommended as rules/laws vary in different countries and agreements made in one country may not necessarily be enforceable in the other country. It is also wise to seek assistance from a legal expert who knows the intricacies of law in both countries.
A few things that are considered during property settlement include the location and nature of the asset/property, ownership details of the asset, the acquisition of the asset before/during the relationship and after the separation, do the Australian courts have jurisdiction to deal with that asset, does the foreign country where the asset is located have jurisdiction to deal with the asset, is it in your best interest to pursue the property settlement in Australia or the country where the asset is located, and if you reach a settlement in the foreign country or Australia, will it be enforceable in both the countries.
Overseas assets are considered and are a part of the Australian property settlement. The biggest challenge when dealing with overseas assets is the issue of jurisdiction. As every country has their laws it is important to consider if Australia has jurisdiction to deal with overseas properties or would a foreign jurisdiction be better suited. This is especially vital when transferring property from one person to another or during sale orders. As a best practice, it is advisable to obtain a property settlement agreement in the country where the assets are there. This ensures lesser hassles. You should also consider the costs and complexities associated with other jurisdictions. Your legal advisor will be able to guide you effectively as per specific requirements and conditions.
The country where the separated/divorced parties have a maximum connection will usually be the judicial system that deals with property settlement. This includes the country where the assets are located and where the separated/divorced parties stay. The first step in determining property settlements is identifying the assets, liabilities, and superannuation owned by both parties who are getting separated. Once the details regarding individual and joint assets/liabilities are provided, the court assesses the contributions by each party and divides the property on a case-to-case basis as per individual requirements.
If an overseas jurisdiction recognises an order by an Australian court, it will be enforced in that country. It is the decision of the foreign country whether they recognise and enforce an Australian judgement against the property/asset. The Australian court may therefore consider a few things before determining how to deal with overseas properties which include whether the foreign court recognises the Australian orders, the parties’ connection to either jurisdiction, or the costs involved in the process. It is simpler for the court and the parties involved to assess the value of the assets and treat them as a financial resource in cases where there are more complications involved.
Determining which country is best for property settlement can be a bit tricky, especially if you have assets in both Australia and a foreign country. The wisest and foremost thing to do would be to get legal advice both in Australia and the country where you have the overseas assets. It is always beneficial to be informed about each country’s way of dealing with property settlement. One should never forget that every country has their own rules which may differ from others and one country’s laws and judgement may not be enforced in another. For instance, some countries may exclude the assets accrued before the marriage and some may not consider the period the parties were in a de-facto relationship. Some countries may not consider inherited assets during the property settlement. Hence, it is always better to get all the information before you commence with filing property settlements.
You can file your proceedings in Australia if either of the parties is an Australian citizen, a resident of Australia, or present in Australia during filing proceedings. The court considers a range of factors when determining whether proceedings should be stayed/dismissed including whether the other country will recognise Australian orders and vice versa, the place of residence of the parties, the connection of the parties to each jurisdiction, and whether there is any advantage in litigating in either jurisdiction.
It is very important to check if the property settlement order can be enforced in both countries. This means you may require obtaining advice in both Australia and the country where the assets are located. If you miss ensuring that the court orders can be registered and enforced in both countries, you stand the risk of not being able to enforce the settlement properly and as planned. Getting in touch with a legal expert is the wisest decision to ensure you are not caught in the intricacies and loopholes of the legal system.
Understanding the legal details can be quite daunting for a layman and having an expert to assist means a lot. Maatouks Law Group is one such renowned and trusted law firm with an experience of 25-plus years. With a qualified and highly-skilled team, we are helping families and businesses with an array of legal issues effectively. Get in touch and our team can provide expert advice about property settlement of overseas assets in Australia. Let us see why you should consider Maatouks Law Group for any legal assistance.
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