Do Overseas Assets form Part of the Property Pool In Australia?
Overseas assets and liabilities form part of the asset pool and are taken into account in any settlement of property between parties to a separation.
Watch our Video on Overseas Assets Below
Those assets and liabilities are also subject to the same disclosure obligation per the court rules such as providing bank statements, the title of the property, any mortgages or valuations as would be expected with any assets or liabilities within Australia.
How can the family court make orders regarding international assets?
The Australian Family Courts expressly have jurisdiction to make orders concerning international assets by virtue of section 31(2) of the Family Law Act which states that the jurisdiction of the Courts “may be exercised in relation to persons or things outside Australia and the territories”.
The biggest issue to overcome when dealing with overseas assets and liabilities will be the issue of jurisdiction. What that means is, ‘Does Australia have jurisdiction to deal with overseas properties or would a foreign jurisdiction be better suited to deal with those properties?’.
Especially when we may be seeking things such as sale orders/transfers from one name to another name or the foreign assets are significant compared to the Australian assets.
When will the court make orders regarding overseas assets?
Jurisdiction and the appropriate forum are usually determined by the “closest connection” test.
This test means that the country in which the separated or divorced parties have the closest connection, for example where they usually live or where most of their assets are, will be the judicial system that determines their matter.
What else should you consider when trying to do a property settlement with overseas assets?
It is important to note that even though the court will make property orders for overseas assets, best practice is to also obtain a property settlement agreement in the country where the assets are situated.
This is due to the fact that an enforceable agreement in any jurisdiction where there are assets would ensure compliance and remedies in the event that there’s non-compliance.
The other factor you should also consider would be the costs associated in getting such orders in another jurisdiction and the complexities in another jurisdiction.
If you’ve overcome these issues, then the Australia Family Law Court rules on deciding what is just & equitable will be applicable to your circumstance.
