Divorce can get messy with the division of international assets2-December-2012 Family Law By admin
In a world where couples can live and work in several countries during the course of their married life, it is important to be aware of how international assets can be divided in the case of divorce.
Family Law solicitor Shweta Kumar, from Sydney law firm Streeterlaw, said couples considering divorce need to take note of a little known legal doctrine.
“If you have property in another country, your spouse can file proceedings in that country and you may find yourself being subject to a jurisdiction that is more favourable to your spouse,” Ms Kumar warned. “If this is you, it’s important you apply now for a stay of the proceedings on the basis of forum non conveniens. Your spouse could be forum shopping or picking a court merely to gain an advantage in the proceedings.”
Forum non conveniens is a doctrine where courts may refuse to hear and determine matters if there is a more appropriate court available to the parties. This can apply between courts in different countries and between courts in different jurisdictions in the same country.
A court will usually dismiss a case when the judge concludes that the court is a “clearly inappropriate forum” and the matter would be better determined in a different forum.
This test was established by the High Court of Australia in Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197 and Voth v Manildra Flour Mills (1990) 171 CLR 538.
Determining whether a legal forum is inappropriate for the division of assets relies on a number of factors. These include:
- An indication that justice can be done in the other forum at substantially less inconvenience or expense.
- Whether there is any advantage to a party in having the proceedings heard in one particular forum. Such advantages may include:
- Damages awarded on a higher scale than in the other forum;
- A more complete procedure of disclosure; and
- A power to award interest.
Ms Kumar said unfortunately the fact that another jurisdiction would provide a more appropriate forum does not always justify the dismissal of the action or put a stop to the proceedings.
“Authorities have stated that the jurisdiction to grant a stay or dismiss the action is to be exercised “with great care” or “extreme caution” (Voth),” she said.
For more information or to get advice on your situation, please contact Family Law expert, Shweta Kumar, from Sydney law firm Streeterlaw on (02) 8197 0105.