NSW Married in India - Can I Get a Divorce in Australia?

[Mitesh]

Hi, I am on 457 visa. Me and wife were here for last 10 months after getting married. We got married as per Indian law last year, and then we came here last August 2014. But a few weeks before, she just left without notifying anyone. Now I want to get a divorce. So can I get the divorce from here or do I need to go to India? If I go to get a divorce, I am scared I would be in trouble as they can charge me with harassment. So is it possible to get divorce from here?
Thanks in advance.

 

[Tracy B]

Hi Mitesh,

You are eligible to divorce in Australia if either you or your spouse:

• Intends to live in Australia permanently and regards Australia as your home;
• Ordinarily live in Australia and have lived here for the past 12 months before filing for divorce; or
• Is an Australian citizen.

If is unclear whether you meet these requirements given you have lived in Australia for less than 12 months. Best to call up Federal Circuit Court of Australia or Births, Deaths and Marriages to enquire.

Under Australian law, you can only apply for divorce if:

• You and your spouse have been separated for at least 12 months; and
• There is no reasonable likelihood that your marriage will reconcile and resume.

Therefore, even if you are eligible to divorce in Australia, you will need to wait until you have separated for at least 12 months.

If you divorce in Australia, the divorce decree may not be recognised in India. This depends on Indian law. This is only really important if you intend to marry again in India or need to prove your divorced status in India. Therefore, it is best to speak with a Foreign Lawyer specialised in Indian Law to enquire whether a divorce decree in Australia will be recognised in India.