Foreign Divorces and Section 44(3)

Section 44(3) of the Family Law Act provides that no application for property settlement or spouse maintenance may be brought after the expiration of 12 months from the date of a divorce order or without the court's leave. Recently in Anderson & McIntosh [2013] FamCAFC 200, the Full Court determined whether Section 44(3) applies to applications for property settlement where the parties obtain an overseas divorce.

The parties were married in Queensland in 1988. They moved to a foreign country in 2006 and were living there when they separated on 23 December 2009. In December 2010, the parties were granted a divorce in the foreign country. At the same time, the parties agreed to a division of property pursuant to the foreign country's law. However the property division orders dealt only with the parties' property owned in the foreign country, and not in Australia.

In July 2012, the wife applied in the Family Court of Australia for property settlement. She did not seek leave under Section 44(3). The husband argued she was required to ask the court's permission because her application was filed more than 12 months after the divorce was granted by the foreign country's court.

The Full Court agreed with the wife and upheld the trial judge's decision not to require leave to proceed out of time for a property settlement where the parties had an overseas divorce. The Full Court held that a foreign divorce does not come under the heading of a divorce order for Section 44(3) purposes. Consequently parties who obtain an overseas divorce are not under the 12 month time limitation to file a property settlement or spouse maintenance application. For them, the clock does not start ticking from the date of the overseas divorce.