Taffa v Taffa When a divorce is alleged to have occurred in a foreign country

Date: Mar 02, 2009
Document Type: Newsletter

In Taffa v Taffa [2009] FamCA 85, the wife made an application for divorce. The husband disputed the application for divorce on the basis that they were divorced in Lebanon on 24 November 1998 by the Jaafarite Canonical Court. The decision of whether the wife's application for divorce could proceed in the Family Court was dependent upon whether the Court recognised the divorce granted in the Lebanon court.

The undisputed facts of the case were:

  • That the parties were married in March 1973.
  • On or about 15 October 1998 the parties attended the Z Islamic Centre and were granted a religious divorce.
  • On 24 November 1998 the parties attended the Lebanese embassy in Sydney and each executed a power of attorney to authorise their respective lawyers in Lebanon to proceed with the divorce application which had been filed in the Lebanon Civil Courts.
  • Although the husband obtained Australian citizenship in 1987, he remained a citizen of Lebanon (dual citizen).

Section 104(3) of the Family Law Act 1975 (Cth) prescribes when a divorce, effected in accordance with the law of an overseas jurisdiction will be recognised in Australia.

In determining whether the overseas divorce decree was valid, it was first necessary for Justice Le Poer Trench to determine who was the respondent and applicant for the purposes of s 104(3). On the evidence before him, Le Poer Trench found that the husband was the respondent. Of particular significance was the fact that the divorce had been described in documents evidencing both the religious and court divorces as a Khula divorce. In a Khula divorce, the wife is the applicant.

Once the husband had been determined as the respondent, Le Poer Trench J focussed upon s 104(3)(d) which prescribes that an overseas decree will be considered valid if the "respondent was a national of the overseas jurisdiction at the relevant date". Even though the husband had obtained Australian citizenship in 1987, he remained a citizen of Lebanon at the time of the divorce being granted in the Lebanon court.

The wife claimed that the divorce should not be recognised pursuant to s 104(4). Section 104(4) states that a divorce shall not be recognised as valid by virtue of subs (3) where a party to the marriage has been denied natural justice or that recognition of the marriage would be contrary to public policy. In this case, the wife argued that the part of her divorce decree which stated "neither party has any financial rights or liabilities towards the other" had the effect of prohibiting her from pursuing property proceedings against her husband and was therefore contrary to public policy.

Justice Le Poer Trench disagreed with this argument, and found that the Court would recognise the divorce granted in the Lebanon court on 24 November 1998. He noted:

  • That the parties had no property of consequence in Australia and therefore any order for property "would be an order in personam which would then have to be enforced in Lebanon if that was possible.
  • Even though the parties were living in Australia at the time of their divorce, they "sought to bypass the law applicable to the dissolution of marriage in this country and chose the forum of the Lebanese Jaafarite Canonical Courts to legally sanction their divorce".
  • The wife has continued to pursue legal action in Lebanon against the husband in relation to property matters and that as the only property available for distribution between the parties is situated in Lebanon, Lebanon is the place where the parties ought to litigate about their property.

As a consequence of the overseas decree being recognised, the wife's divorce application was dismissed.

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