When Jurisdictions Collide in Australian Divorce Proceedings

There is sometimes a perception that a Divorce Application is about as straight forward as you can get in terms of Family Law matters. While this is true much of the time, the notion that divorces are simple, procedural and an exercise in ‘ticking boxes’, can be ill-conceived. Divorce Applications can quickly turn from straightforward to complex upon an objection by one party or where there is already a competing application before either the same Court or a Court in another country.

We were recently able to explore this scenario in the case of Bhakta & Konda. In these proceedings, we successfully represented the Wife in the then-Federal Circuit Court of Australia (‘FCCA’).

The parties had married in India in 2018. Their marriage lasted for 16 days prior to separating and they spent this time equally between India and Australia. While the parties were both still residing in India, the Wife filed an application in that country for an annulment of the marriage (‘the Annulment Application’); return of her possessions to her; and a cash payment to her by the Husband.

Some six (6) months after the wife had filed her Annulment Application, which had been adjourned on several occasions due to COVID-19 restrictions, the Husband filed an application in Australia for divorce (‘the Divorce Application’).

Ordinarily, the Court can grant a Divorce in circumstances where:

1.       Either party is an Australian Citizen; is
domiciled in Australia or is ordinarily
resident in Australia for at least one (1) year
prior to the Application; and

2.       Where the parties have been married for
at least two years at the time of divorce;
and

3.       Where the parties have been separated
for at least twelve months at the time of
filing the Application; and

4.       The marriage has broken down
irretrievably without reasonable likelihood
of cohabitation resuming/reconciliation.

On behalf of the Wife, we conceded that the Husband’s Application was in proper form and that at face value his Application for Divorce met the requirements for a Divorce to be granted. The FCCA no doubt had the power to immediately determine the Husband’s Application for Divorce. However, we were able to successfully have the Divorce Application stayed on the basis that the FCCA was a clearly inappropriate forum for determining the divorce application while ever the Annulment Application in India remained on foot.

Section 52 of the Family Law Act 1975 (Cth) says that where both an application for an annulment and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the annulment application. This is because, if the annulment is successful then the marriage will be viewed as not having been valid. A divorce cannot be granted for a marriage that did not exist. Problematic thereto is the fact that once a Divorce Order has taken effect, it cannot be rescinded at law.

Our submission that the intention of section 52 should extend to the present case notwithstanding that the annulment application and the divorce application were before two separate courts and not before the same Court as section 52 required, was unsuccessful. However, the Court found that while this section did not apply to these proceedings, its purpose to prevent the serious mischief that could arise if the divorce order was made in circumstances where nullity proceedings have also been filed was relevant.

The Court was satisfied that:

1.       The Indian proceedings, which concerned
significant property of the parties located
in India could be dealt with separately
from the Australian divorce proceedings
and there was no evidence that the Indian
property proceedings would be affected if
the divorce order was made in Australia.

2.       The parties conducted part of their
marriage in Australia and both parties
continue to reside in Australia. The Wife is
an Australian citizen.

3.       The parties and their marriage also have a
connection to the Indian jurisdiction.
Their marriage occurred in India and they
resided in India for part of their marriage.
Both parties were resident in India at the
time the Wife filed her Annulment
Application.

4.       Both jurisdictions are capable of
determining the issues before their
respective courts. The Indian
Family Court could also determine an
application for divorce, if one were filed in
that jurisdiction.

5.       In all likelihood, the Husband had
knowledge of the Wife’s Annulment
Application at the time he filed his latter
Divorce Application.

6.       Most of the issues with respect to the
marriage were before the Indian Family
Court.

7.       Allowing the Australian proceedings to
continue to finalisation could create a
situation in which a divorce order is made
with respect to a marriage that, at law, is
not valid.

8.       Had the Indian Family Court already
annulled the marriage, the FCCA would
likely be prevented from making a divorce
order.

9.       That a continuation of divorce
proceedings in the FCCA would be
‘seriously and unfairly burdensome,
prejudicial or damaging’ or ‘vexatious, in
the sense of being “productive of serious
and unjustified trouble and harassment’.

Representing the wife, we carried the onus of proving that, “having regard to the circumstances of a particular case … the local court is a clearly inappropriate forum for the determination of the dispute”. The Court held that the Wife discharged this onus.

The Husband’s application for divorce has been stayed pending the outcome of the Wife’s Application for Annulment.  You can read the full case here.

If you require advice about your own divorce or annulment application, contact our team on:
(02) 6185 7007 or go to make a booking.