Nowadays it is not uncommon for us to have international assets – from shares and investments, to overseas property and businesses. As with all assets and liabilities, the international ones need to be accounted for as part of your property settlement.
When you separate or divorce there is usually property that needs to be divided. That property includes everything from actual property, to cars, household belongings, investments, cash, businesses, superannuation, pets, inheritances and anything of value (including sentimental items). There are also debts or liabilities that need to be resolved through the property settlement.
All of these assets and liabilities are valued to create what is known as the ‘property pool’. Sometimes couples are able to work out how to divide the property pool themselves and file a documented property settlement (called an Application for Consent Orders) with the courts, or alternatively, enter into a private agreement called a Financial Agreement. When couples can’t reach agreement, it becomes the courts role to determine how the property pool is divided.
Valuing overseas property and international assets
As with all other assets in the property pool, separating couples need to agree on the value of each asset. In some cases, this can be relatively straight-forward, but it is also not uncommon for one party, or both parties, to dispute the value attributed to assets. When this happens, an expert valuation is required. For international or overseas assets, the valuation typically needs to be provided by an expert in that country.
Can Australian courts rule on the division of international property?
The short answer is – yes, they can, but not always. In some instances, it can be more appropriate and beneficial for the matter to be heard in the jurisdiction where the property is held. In others, it is better for the matter to be heard here in Australia, or for reciprocating agreements or orders to be executed and/or filed in all relevant jurisdictions.
If the two parties don’t agree, the court will decide where the matter should be heard. To do this they use the ‘clearly inappropriate forum’ test, to consider factors such as:
- Whether the other jurisdiction will recognise an Australian court order and vice-versa;
- The parties’ connection to the jurisdiction, such as place of residence;
- Which jurisdiction is best placed to provide a complete resolution of the issues in dispute;
- The Order in which each of the proceedings were instituted;
- Cost and expenses involved in participating in proceedings in Australia or overseas.
Is an order from an Australia court enforceable overseas?
The likelihood of an overseas jurisdiction recognising an Australia court order really depends on the country or jurisdiction in question.
Unfortunately, there is a lot of complexity and uncertainty around international jurisdictions and how different matters are handled. For this reason, it is important to get expert legal advice early on in the process.
Need advice in relation to a property settlement?
We’re here to help and can advise you on how the law applies to your specific circumstances – simply contact us for an initial, obligation free chat.