Recently in Anderson & McIntosh [2013] FamCAFC the Full Court of the Family Court of Australia was asked to consider whether an Argentinian Divorce Order was a “divorce order” within the meaning of the Family Law Act 1975 (Cth). The unanimous decision of the Court was that it was not.Section 44(3) of the Family Law Act provides that where a “divorce order” has been made , proceedings for property settlement shall not be instituted (except with leave of the Court or consent of both parties) after the expiration of 12 months following the order coming into effect.
The parties had lived in Argentina since 2006 and were divorced there in 2010. They reached agreement as to their Argentinian property and the agreement was approved by the Argentine Court as part of the divorce. No orders were made in relation to property owned in Australia. In July 2012, the wife filed an application pursuant to section 79 of the Act seeking an equal division of the assets of the parties. The husband asserted that the Argentinian order was a “divorce order” within the meaning of the Act and therefore as a consequence the wife required leave of the Court. Justice Murphy held that the order was not a “divorce order” and concluded that leave was not required. The Husband appealed.
The Full Court, comprising Chief Justice Bryant and Justices May and Thackray agreed with Justice Murphy’s decision and held that the Argentine order was not a “divorce order” and that as a consequence leave was not required.
The jurisprudence of the meaning of “divorce order” received significant consideration by the Court. The Full Court considered the position from Cain & Cain (1987) FLC 91-808 and Savage and Hodgson (1982) 46 ALR 198; (1982) FLC 91-281. Until this decision there were two opposing views by the trial division of the Family Court, requiring fresh determination in Anderson v McIntosh.
In summary, Justice May held that:
- In my view, the legislation is clear. “Divorce order” relates to a divorce obtained pursuant to the Family Law Act. The statutory limitation in relation to property settlement applies only to parties to a divorce order.
- No part of the legislation, including the definition of “matrimonial cause”, would lead to the conclusion that the term “divorce order” should apply to a divorce obtained overseas by order or otherwise. The term “divorce order” is used consistently throughout the legislation – pertaining to Australian divorces exclusively.
- It may seem to be an anomaly, that foreign divorces recognised under Australian law do not have the same temporal limitations imposed where the parties seek a property settlement in this country. There is no doubt that a divorce may be obtained in another country with different administration and different limitation periods. The Act clearly has provided a limitation period only for Australian divorces.
- For these reasons it cannot be accepted that, on an ordinary construction of the relevant sections of the Act, an application for property settlement in circumstances where there is a foreign divorce recognised pursuant to s 104, requires leave after the expiration of the time provided by s 44(3).
The decision has implications for those with family law disputes who have already had a foreign divorce order and for the family lawyers advising them.
For a full copy of the Full Court’s decision click here.
