Overseas Property – not necessarily out of reach
A recent decision in the Family Court in Melbourne demonstrates the power of the Australian Family Court to make orders about people who are not living in Australia, and about property that is not in Australia.
A couple had spent 15 years living together and married but have never lived in Australia. The Wife an Australian met the Husband, an Englishman, in 2000. She owned a house in Australia and the Husband an investment property in Britain. He was working in Singapore and was in Australia on holidays. He returned to Singapore and the Wife followed a few months later. They lived together in a de facto relationship.
In 2003, the Husband received a promotion and they moved to China. The Husband bought another investment property in Britain. They married in 2006 by which time they had two children, both born in China.
In 2009 they purchased a holiday house in Australia. A third child was born in 2009. The Husband received another promotion and they returned to Singapore in 2010. They visited Australia, and sometimes Britain, on family holidays.
In 2015 they separated but remained in Singapore.
The Wife acted quickly. She commenced proceedings in Australia seeking property orders and spousal and child maintenance. The Husband then commenced proceedings in Singapore seeking property orders and orders about the children. The issue became which Court would deal with the case.
The Family Court in Singapore could not make orders about the Husband’s properties in Britain because they were bought while they were living in a de facto relationship. The Australian Family Court could make orders about property acquired while the parties were in a defacto relationship and while they are married. The Australian Family Court was asked to decide which court, Australia or Singapore, should hear the case.
After the parties started living together and were married, they never lived in Australia. Their 3 children were born in China and never lived in Australia. The only connection with Australia was the holiday home in Australia and the fact that the wife was an Australian.
Singapore does not recognise de facto relationships, so will not make orders about the properties in Australia or in Britain acquired while in a defacto relationship. But Singapore will enforce financial orders made by Australian courts. The Australian Family Court will make orders about property acquired during a defacto relationship.
There was clearly an advantage to the Wife in having the case decided in Australia.
The essence of this case was whether Australia was the correct forum (the correct jurisdiction) to decide the case.
It is well-established law that when an Australian court determines the issue of forum the question to be decided is whether the Australian court is the “clearly inappropriate forum”. In this case, it was for the Husband to demonstrate that Australia was clearly the inappropriate forum.
The judge deciding the case formed the view that because the pre-marriage assets in Britain and in Australia can be taken into account in Australia but not in Singapore, it was to the Wife’s advantage for the case to proceed in Australia. Australia was not a “clearly inappropriate” forum.
The lesson from this is to get legal advice as soon as possible. Quick action may save the day.