If a party in a divorce or de facto property settlement has assets overseas, it must be disclosed to the other party.
Whilst the Court has jurisdiction to make Orders concerning international assets, it is very difficult to enforce those Orders overseas. Orders made by an Australian Court may not be recognised or enforceable in an overseas jurisdiction.
In determining a property settlement that deals with overseas assets, the Federal Circuit and Family Court of Australia (FCFCOA) will consider the following factors:
- Whether the foreign jurisdiction will recognise the Australian Orders;
- The costs incurred throughout the process of enforcement
- The parties’ connection to either the Australian jurisdiction or overseas jurisdiction.
Due to the complexities involved with overseas assets and the enforcement of Australian Orders, rather than making orders for an overseas asset to be dealt with in a particular way (sold or transferred to the other party), the Court will consider the asset as a financial resource and make the appropriate adjustments to the overall property division.
In other situations, the asset is included in the property pool and orders are made as to how it should be dealt with in the property settlement. It really is a matter to be determined on a case-by-case basis.
Some practical things to keep in mind when dealing with overseas assets:
- It may be necessary to involve a lawyer local to the area to ascertain information such as a valuation or title search.
- Overseas superannuation interests may not be a splitable interest.
- Orders made in the FCFCOA can be registered and recognised in some countries.
- Parties should obtain independent advice from an accountant about any possible tax consequences particularly if orders are made for the disposal of an asset.
To find out more about the division of overseas assets in a property settlement, speak to one of our expert family lawyers in Cairns today.