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

Date: Aug 22, 2010
Document Type: Article

In the 2009 case of Taffa v Taffa , 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 was valid, it was first necessary for the judge to determine who was the respondent and applicant for the purposes of s 104(3). On the evidence before the Court, it  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, the judge 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.

The Court disagreed with this argument, and found that it would recognise the divorce granted in the Lebanon court on 24 November 1998. As a consequence of the overseas decree being recognised, the wife's divorce application was dismissed.

For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law. 

Back to Publication List