In legal terms, jurisdiction is an official power of authority—the power to make decisions and judgements that are legally binding. If you reside in Australia but were married overseas, you might be wondering if the Australian legal system has any jurisdiction over your divorce. If you were in fact married overseas but are now considering divorcing your partner in Australia, the courts might be able to legally end your marriage. There are a few conditions that must be applicable, so you need to ensure that these conditions have been met. Don't worry, because the process is not so difficult. So what do you need to know about getting divorced in Australia if you were married overseas?
If you or your spouse is an Australian citizen, then the process to get divorced is the same as if you were both Australian citizens (regardless of where you were married). Just so long as one of the divorcing parties is an Australian citizen (through birth or naturalisation), then the Australian courts have full jurisdiction over the dissolution of your marriage.
Permanent Residents of Australia
So long as you or your spouse plan to permanently remain in Australia and have received permanent residency, then you can apply for divorce just as an Australian citizen would.
Temporary Residents of Australia
If you are planning to only temporarily remain in Australia, then some restrictions apply. Remember that you need to be separated for at least one year before applying for divorce (and this is the same for Australian citizens, permanent residents or temporary residents), so you must have a visa that allows you to remain in Australia until such time as the divorce is granted. If there are complications with the divorce, it might take additional time for matters to be finalised. So if you were to separate from your spouse shortly after arrival in Australia, you would still need to be able to legally remain in Australia for at least one year afterwards (and possibly even longer if complications arise). Family solicitors might be able to help if you wish to divorce and yet do not wish (or are not able) to remain in Australia. There might be other options available to you.
You are generally not entitled to apply for a divorce in Australia if you are only in in the country on a tourist visa. Some visitor visas (subclass 600) and tourist visas (subclass 676) allow you to remain in Australia for up to one year, and yet either you or your spouse (or both) will not be considered permanent or temporary residents of Australia (you will considered to be a visitor or a tourist). This means that the Australian courts do not have jurisdiction over your divorce.
Remember that marriage counselling can be mandatory before the Australian courts can consider a divorce for any marriage that has lasted for less than two years. This can prolong the divorce proceedings. Please consult a lawyer if you should have any queries.