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FAMILY LAW ACT 1975 - SECT 104

Overseas decrees

             (1)  In this section:

"applicant " , in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means:

                     (a)  the party at whose instance the divorce, annulment or legal separation was effected; or

                     (b)  where the divorce, annulment or legal separation was effected at the instance of both the parties--each of the parties.

"marriage " includes a purported marriage that is void.

"relevant date " , in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means the date of the institution of the proceedings that resulted in the divorce, annulment or legal separation.

"respondent " , in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means a party to the marriage, not being a party at whose instance the divorce, annulment or legal separation was effected.

             (2)  For the purposes of this section, a person who is a national of a country of which an overseas jurisdiction forms part shall be deemed to be a national of that overseas jurisdiction.

             (3)  A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognized as valid in Australia where:

                     (a)  the respondent was ordinarily resident in the overseas jurisdiction at the relevant date;

                     (b)  the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was ordinarily resident in the overseas jurisdiction at the relevant date and either:

                              (i)  the ordinary residence of the applicant or of that applicant, as the case may be, had continued for not less than 1 year immediately before the relevant date; or

                             (ii)  the last place of cohabitation of the parties to the marriage was in that jurisdiction;

                     (c)  the applicant or the respondent or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was domiciled in the overseas jurisdiction at the relevant date;

                     (d)  the respondent was a national of the overseas jurisdiction at the relevant date;

                     (e)  the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of the overseas jurisdiction at the relevant date and either:

                              (i)  the applicant or that applicant, as the case may be, was ordinarily resident in that jurisdiction at that date; or

                             (ii)  the applicant or that applicant, as the case may be, had been ordinarily resident in that jurisdiction for a continuous period of 1 year falling, at least in part, within the period of 2 years immediately before the relevant date; or

                      (f)  the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of, and present in, the overseas jurisdiction at the relevant date and the last place of cohabitation of the parties to the marriage was an overseas jurisdiction the law of which, at the relevant date, did not provide for divorce, the annulment of marriage or the legal separation of the parties to a marriage, as the case may be.

             (4)  A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall not be recognized as valid by virtue of subsection (3) where:

                     (a)  under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice; or

                     (b)  recognition would manifestly be contrary to public policy.

             (5)  Any divorce or any annulment of a marriage, or any legal separation of the parties to a marriage, that would be recognized as valid under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognized as valid in Australia, and the operation of this subsection shall not be limited by any implication from those provisions.

             (6)  Notwithstanding anything contained in this section, the annulment in accordance with the law of an overseas jurisdiction of a marriage solemnized under Part V of the Marriage Act 1961 , being an annulment on the ground only of non-compliance with the formalities prescribed by the law of the jurisdiction in which the marriage was solemnized, shall not be recognized as valid in Australia.

             (7)  For the purposes of this section, a court in Australia, in considering the validity of a divorce or an annulment of a marriage, or a legal separation of the parties to a marriage, effected under a law of an overseas jurisdiction:

                     (a)  where the respondent appeared in the proceedings for the divorce, annulment or separation:

                              (i)  is bound by the findings of fact on the basis of which a court of the overseas jurisdiction assumed jurisdiction to grant the divorce, annulment or separation; and

                             (ii)  may treat as proved any other facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction; or

                     (b)  where the respondent did not appear in the proceedings for the divorce, annulment or separation--may treat as proved any facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction.

             (8)  For the purposes of the preceding provisions of this section but without limiting the operation of those provisions, a divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall be deemed to have been effected in accordance with the law of an overseas jurisdiction if it was effected in another overseas jurisdiction in circumstances in which, at the relevant date, it would have been recognized as valid by the law of the first-mentioned overseas jurisdiction.

             (9)  Where a divorce or the annulment of a marriage is to be recognized as valid in accordance with this section, the capacity of a party to that marriage to re-marry in accordance with the law of Australia is not affected by the fact that the validity of the divorce or annulment is not recognized under the law of some other jurisdiction.

           (10)  The preceding provisions of this section apply in relation to divorces, annulments and legal separations effected whether by decree, legislation or otherwise, whether before or after the commencement of this Act, and, for the purposes of this section, any decree, legislation or other process by which it is established that a purported marriage was or is to become void shall be deemed to be an annulment of the marriage.



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