By Antonia Marran, Associate
International movement has resumed in force. The inevitable consequence of such mobility is the formation and continuation of cross-border long-term relationships. The social norms of modern society mean that these relationships are not always formalised by marriage. The reasoning behind this can be varied, some examples include: optimism bias, that is, some people do not believe their relationship will ever break down therefore they see no reason to formalise it by virtue of marriage; historical, religious or cultural opposition to the institution of ‘marriage’; many people ‘trial’ living together before they eventually tie the knot; and, parties often live together for practical reasons such as combining resources as a cost saving strategy, this last reason is particularly relevant when people are living overseas as there may be less access to family support.
While these relationships can often ‘look, sound and feel’ like marriage, in terms of legal obligations and rights to financial remedies upon breakdown, they can be very different. This is when jurisdiction plays a vital role. There are many jurisdictions which do not provide financial remedies for ‘spouses’ in marriage-like relationships. Some examples include: Singapore, Hong Kong, many States in the United States of America, the Netherlands, England, Wales, Spain and China.
Australia is a jurisdiction which recognises de facto relationships, subject to certain conditions being met, and invests these partnerships with legal rights and obligations in the event of breakdown. This means that for Australians in marriage-like relationships abroad, the option to commence proceedings in Australia can be critical to the outcome. That said, there is a geographical requirement that must be satisfied in order to make an application under for property settlement in Australia, by reference to their time living in a relevant Australian State or Territory. In short, either or both of the parties need to be ordinarily resident in when the Application is made; and the parties were ordinarily resident for at least a third of the relationship or the applicant made substantial contributions to the relationship. However, if these two conditions are not satisfied then, there is an alternative condition which is that both parties were ordinarily resident in Australia when the relationship ended.
The Mills Oakley Family Law Team has a wealth of experience in dealing with international family law matters, some of whom are Fellows of the International Academy of Family Lawyers.