Property Settlement: How Does Family Law Consider Overseas Property?

Introduction

In Australia, we have a multicultural society. As our society becomes increasingly globalised, marriages and de facto relationships between people who originate from or travel to and live in different nations are becoming more common. In such circumstances, it is increasingly the case that when these relationships break down there will be issues regarding where the divorce and property proceedings should take place and how assets in different countries will be treated.

Relevant Case Law

In a recent case before the Federal Circuit Court of Australia at Melbourne Sinha & Sinha [2018] FCCA 2952, the Court indicated how property cases involving overseas assets will be considered by the court. In that case, Judge Hartnett Ordered that the Husband return funds that he had transferred overseas to allow its just and equitable division between the parties.

In the case, the parties had been married in India in 1999. Throughout the marriage, they had lived in multiple countries for education and employment opportunities. The parties had two children together born in 2002 and 2011. In 2013, they moved to reside in Australia and the parties separated in March 2017. They had agreed an property pool with assets to the value of $754,658 made up of bank accounts, superannuation and motor vehicles in various countries but mostly in Australia and India.

At the time of the hearing, the Husband remained overseas and was not present or available for cross examination but was represented by a Barrister in Australia.

The Wife in her documents and submissions had made claims that the Husband owned further property overseas but was not able to adduce evidence to that effect. She claimed it was a commercial decision that it was too expensive to conduct searches for the evidence in the relevant country.

Over a period of time, the husband withdrew a total sum of approximately $260,000 from accounts in Australia and India and transferred those monies to accounts in his sole name in another country. It was held that his depletion of funds in the Australian and Indian bank accounts was a planned action taken by him to deny the wife access to funds and/or an appropriate property settlement. The Court had issued an order earlier in proceedings and he returned the sum of $250,000 to the trust account of the wife’s solicitor, to be held on trust pending the Court’s determination.

Orders

On consideration of the material before the Court, the Judge Ordered that the wife retain all Australian bank accounts in her name, the $250,000 in the solicitor’s trust account, her superannuation entitlement, the majority of the husband’s Australian superannuation entitlement, and the husband’s car in Australia.

The Judge further Ordered that on account of the husband’s actions in failing to act in a reasonable way to negotiate property matters with the wife and for unnecessarily prolonging the proceedings, that the Husband pay an amount of the Wife’s legal fees incurred.

Whilst the husband had taken deliberate actions to moved funds and assets overseas and deliberately resided in a country where child support payments could not be enforced against him, the Court made Orders binding upon him rather than on the property to recover the assets and used assets located in Australia to achieve a just and equitable outcome for the wife.

Leave a Reply