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NSW No Overseas Marriage Certificate - Divorce In Australia?

Discussion in 'Family Law Forum' started by LoveConquersAll, 13 August 2016.

  1. LoveConquersAll

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    Hi, my partner and I really need help.

    I am an Australian citizen and my partner is an Indian citizen. Basically, he has been wanting to divorce his Indian wife for more than 5 years, but she keeps refusing to sign any divorce papers. He was forced into the marriage by his parents. They had children and he really did try to make it work, but they are just really not compatible and he can't accept the harsh way she deals with their children, or that she always argues with his parents, and the many times she has threatened suicide if he leaves her (and did actually attempt it once or twice).

    The whole situation is so sad. His parents love me and want us to get married and want to see their son happy. Nobody deserves this drama in their life.

    We both met each other, fell in love and now really want to get married but obviously can't until he gets a divorce. Since he is unable to do it in India, could he possibly get the divorce done if he comes to Australia while she remains in India? Would he need her signature or anything from her?

    The only problem is that they were married in India within the Hindu marriage act, but never registered it and never received any marriage certificate.

    So would it still be possible for him to divorce this woman in Australia if he doesn't have a marriage certificate in the first place?
     
  2. Victoria S

    Victoria S Well-Known Member

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    A person can apply for a divorce in Australia if either they or their spouse:
    • regard Australia as their home and intend to live in Australia indefinitely, or
    • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
    • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
    In order to be eligible to apply for a divorce they must also have been married for 2 years and separated for at least 12 months - which evidences that there is no reasonable chances of the couple getting back together. The court does not consider why the marriage ended so the only grounds for divorce is that the marriage has broken down irretrievably.

    Either the husband or wife can apply; whether or not the other wants to get divorced is irrelevant.

    The steps required are as follows:
    • File a complete application form;
    • Pay a filing fee
    • Provide the marriage certificate. As in this case if there is no marriage certificate, the applicant must file an affidavit containing details such as the wedding vows, witnesses or promises of commitment. If the wedding took place overseas, it must be evidenced by an official extract from the foreign registry of marriages. If this is not in English, it must be accompanied by a certified translation and an affidavit stating the person who did the translating was competent to do so.
    hope that helps.
     
  3. LoveConquersAll

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    Hi Victoria.

    You mentioned that " it must be evidenced by an official extract from the foreign registry of marriages"...how would that be possible if their marriage was never registered in the first place?

    Thanks for your help.
     
  4. Victoria S

    Victoria S Well-Known Member

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    I would speak with someone at the family court and determine whether an affidavit professing a marriage without any paper work from the foreign country is possible. I believe they would however I'm sorry I'm not 100% sure.
     

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