Overseas divorce – property settlement time limit does not apply
- In my view, the legislation is clear. “Divorce order” relates to a divorce obtained pursuant to the Family Law Act. The statutory limitation in relation to property settlement applies only to parties to a divorce order.
- No part of the legislation, including the definition of “matrimonial cause”, would lead to the conclusion that the term “divorce order” should apply to a divorce obtained overseas by order or otherwise. The term “divorce order” is used consistently throughout the legislation – pertaining to Australian divorces exclusively.
- It may seem to be an anomaly, that foreign divorces recognised under Australian law do not have the same temporal limitations imposed where the parties seek a property settlement in this country. There is no doubt that a divorce may be obtained in another country with different administration and different limitation periods. The Act clearly has provided a limitation period only for Australian divorces.
- For these reasons it cannot be accepted that, on an ordinary construction of the relevant sections of the Act, an application for property settlement in circumstances where there is a foreign divorce recognised pursuant to s 104, requires leave after the expiration of the time provided by s 44(3).
- The appeal should be dismissed.
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Was Leave Pursuant to s 44(3) Required?
- His Honour’s findings with respect to s 44(3) are premised on leave pursuant to that section being required where parties are divorced by the law of a country other than Australia (at -). No ground of appeal challenges, in terms, that premise, nor do any submissions made by the wife or on her behalf.
- His Honour’s premise was based on one view – possibly the then predominant view – of then existing authority. Subsequently, this Court has decided in Anderson & McIntosh (2013) FLC 93-568, after considering existing authority and careful arguments in respect of the provisions of the Act and their meaning, that leave pursuant to s 44(3) is not required in respect of a divorce obtained overseas.
- On an appeal by way of rehearing, this Court is bound to apply the law as at the date of the hearing of the appeal (see, Coulton v Holcombe  HCA 33; (1986) 162 CLR 1 at 7). This appeal was heard on 2 December 2013 and the decision in Anderson was handed down on 13 December 2013. However, the effect of the decision in that case is to determine the meaning of the terms of the Act applicable on, relevantly, 2 December 2013 (when the appeal was heard), and on 27 July 2011 when his Honour heard the proceedings; 13 March 2012 when his Honour delivered judgment; and, indeed, on 26 May 2000 when the wife filed her application for settlement of property in the Family Court.
- As a result, his Honour was in error in determining that the wife required leave pursuant to s 44(3) of the Act to institute her proceedings for settlement of property.
- Although no ground of appeal asserts, in terms, an error of law in this respect and although no submissions were made to that effect, “if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it” (Warren v Coombes  HCA 9; (1979) 142 CLR 531 at 553, per Gibbs ACJ, Jacob and Murphy JJ).
- As a result, the appeal, insofar as it challenges the alternative order made by his Honour in respect of leave pursuant to s 44(3), must succeed.
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