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Win for Australian wife in cross-border divorce case

By January 4, 2021February 23rd, 2024No Comments

Cross-border divorce: Australia’s highest court has issued a ruling that divorce orders issued by a Dubai court do not stop a wife pursuing a property settlement and spousal maintenance through Australia’s family courts. The wife will still have rights to pursue proceedings under our Family Law Act despite the Dubai court having already issued the husband with “irrevocable fault based” divorce orders which, under the local law, extinguished her right to seek property orders in the Dubai courts. This case is interesting because in our globalised world, it’s very common to find Australians who have married and divorced in foreign countries who find themselves having to deal with the complexities of multijurisdictional family law and cross-border divorce issues. Let’s take a quick look at this case.

The High Court case, pseudonymised as Clayton v Bant, involves complicated technical principles of res judicata and cause of action estoppel. But in a nutshell, the High Court has found that the Dubai court judgment had not “finally determined” the property settlement and spousal maintenance issues, so it could not be a case where an Australian cause of action was impermissibly repeating a previous cause of action. A legal principle exists that prevents people seeking the same cause of action if a court of comparable jurisdiction has already issued a determination.

Case background

The former couple had married in Dubai and lived both there and in Australia, owning real property in both countries. They separated in Australia and the husband returned to Dubai. The wife began family court proceedings in Australia seeking parenting orders, later amended to include property and spousal maintenance orders.

The husband then started divorce proceedings in the Dubai court system, also seeking the extinguishment of all other marital rights of his wife. The husband was successful and the court in Dubai granted an “irrevocable fault based divorce” to the husband, dissolving the marriage. Under Dubai law, this meant the wife couldn’t seek property orders in Dubai. The husband then tried to have the Australian courts stay the wife’s applications here.

At trial, the husband’s stay application was dismissed on the basis that the Dubai orders made no provision to alter the couple’s interests in Australian property and that the Dubai court had not dealt with the wife’s right to spousal maintenance.

The husband then successfully appealed that decision. The appeal court ordered the wife’s applications permanently stayed, finding the Dubai proceedings had in fact determined the exact same cause of action.

The wife then obtained leave to appeal to the High Court, which allowed her appeal and has now found the Dubai court did not actually deal with the same cause of action because the Dubai court didn’t have jurisdiction relating to certain property and spousal maintenance orders under our Family Law Act. For example, differences between our laws on spousal maintenance (referred to as alimony in Dubai) meant that a ruling on alimony in Dubai did not “merge” with a comparative ruling on spousal maintenance in Australia, therefore it was not a case of ‘overlapping’ causes of action.

Key points about cross-border divorce issues

  • Finding the right forum is important. Family law legislation differs vastly around the world and it can make an enormous difference to outcomes depending on where litigation takes place. Where there are international aspects to your matter, make sure you obtain legal advice here in Australia as well as from a competent family lawyer in the other jurisdiction.
  • Sometimes there’s a choice of which jurisdiction to start proceedings in. That can be relevant because there are strategic advantages to filing proceedings in certain countries due to their differing laws, tax systems, court costs, and issues such as a country’s powers of enforceability with regard to overseas orders and agreements. The length of time a country takes to resolve disputes might also be a factor in someone’s choice of where to proceed.
  • Be aware that decisions often need to be made quickly when there is a possibility of competing forums.
  • Shop around to find a family law solicitor with experience in cross-border divorce litigation.

You can read this case here.

You might also like to read our blogs on international divorce and international family law matters. You can also read our blog about international family law arbitration.

If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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