Australian courts have the jurisdiction to make financial/property orders with respect to overseas assets or funds. However, the issue is that even if the Australian court made such orders, the orders may not be enforceable against the asset overseas. Take for example, a case where as part of a property settlement, your ex-spouse was required to sell a property that they held overseas and distribute the funds with you. Unless there are mechanisms in the overseas jurisdiction/court to enforce the Australian court order, it’s unlikely that you’ll be able to force the sale of the property and distribution of funds to you.
When negotiating a financial/property settlement, it’s critical that this, and other considerations are taken account so that your interests are adequately protected. It is often helpful to ask the following questions when it comes to overseas assets/funds:
- If it’s going to be difficult to enforce an Australian court order on an overseas asset, is there another way to resolve the financial/property matters? For example, can one spouse keep more of the assets in Australia while the spouse with the overseas assets keep more of those assets?
- Are the majority of your assets in Australia or overseas? If the majority of your assets are overseas, and/or if your relationship/marriage occurred overseas, it’s even more imperative that you consider whether Australia is the correct jurisdiction to deal with your matter. Given the vast differences family and divorce law between countries, the country in which your matter is dealt can make a very big difference on the outcome.
- If you are unsure as to how much assets your ex-spouse holds overseas, are there title, company or other searches that you can undertake overseas? An examination of bank or transfer statements or even declarations made to government departments or potential lenders may bring things to light.
- If you are transferring assets and/or funds from overseas, there could potentially be tax consequences in doing so. There may also be restrictions on the amount of money that you are able to transfer out of a particular country.
- Certified translations may well be required when it comes to providing documentation to the court of assets held by an ex-spouse overseas. This needs to be done in accordance with the rules of evidence so that the evidence is admissible in court.
The existence of overseas assets often complicates a financial/property case. It is therefore critical to obtain expert legal advice when overseas assets are involved. Our expert family lawyers in Ringwood and Mount Waverley have had extensive experience dealing with cases involving overseas assets. For more information and an obligation free chat, please contact one of our experienced family lawyers on jlok@oikosfamilylaw.com.au or 0421 397 316.
