WA Pending Case in India - Can I File for Divorce in Australia?

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Sridhar

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25 August 2019
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Hi,

My brother is an Indian born Australian citizen. He got married to an Indian girl in India, and lived together in Australia for 7 years, but the things didn't work well between them and she filed for separation and later withdrew it at the last moment stating she doesn’t want to get separated however my brother sees no hope in this relationship and wants to get separated from his partner. She left for India with the kid without his consent and they are both fighting a divorce case in Australia.

However, the case proceedings have been dragged due to inefficiency of by brothers’ lawyer for not producing all the necessary documents in the court.

He has an option of withdrawing the case and refiling however if his partner intends to file DV and harassment case in india against him and ruin his life.

She is also claiming child benefit every month from him which he is paying.

With a pending case against him india can he refile a divorce case in Australia and will this be considered in the Australian courts.

They have been separated for about 16 months.
 

Tim W

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What exactly is your the question here?
 

Tryna Getit

Member
26 August 2019
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What exactly is your the question here?

If his brother has an open divorce case in India (where the system is really inefficient, and you can be stuck with an open case for years), can he still file for Divorce as a sole applicant here in Australia? Would it be considered here?

We're unfortunately in the same predicament. My partner's ex-wife is refusing to give him a divorce and is prolonging proceedings by not showing up, taking forever to respond, and demanding exorbitant amounts of money as maintenance - even though she is employed and making enough money. She has also filed a false claim of DV against him and his entire family (even though she hasn't really lived with them the entire time they were married). They've been living apart for 4 years now - she in India, with his kid who she refuses to give him access to and he's here.

Can a person (who got married in India) who has an ongoing/open divorce case in India file for divorce in Australia as a sole applicant? My partner will be applying for citizenship in October and we'd like to get his 'married' status removed.
 
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Atticus

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6 February 2019
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Can a person (who got married in India) who has an ongoing/open divorce case in India file for divorce in Australia as a sole applicant? My partner will be applying for citizenship in October and we'd like to get his 'married' status removed.

If citizenship is granted, he will be able to make a sole application here in OZ... But, she still has to be served & acknowledge the service with a response, which she may well not do... So service would need to be done by a person who is legally accredited to do so In India...

A photo of her would need to be given to the server to properly ID her as the person being served... the server would then need to fill in an affidavit of service that would be provided to the court as proof of service (very important)... The court must be satisfied that she has been served... Because she is overseas, she would need to be served a minimum of 42 days prior to the date of court...

Other sticking point may be that she opposes the divorce hearing in Australia because of the current case in India... Don't know the legalities of that, but he should turn up to the divorce hearing to answer any possible questions to better the chances of it being granted.
 
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Sridhar

Member
25 August 2019
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Thank you all for the responses. I was going through the WA courts website, in which there are 2 criteria for a party to oppose the divorce in Australia

1. The main reason for opposing a divorce usually lies in a dispute over the date of separation (a contested date of separation may not satisfy the strict requirement of a 12 month separation period ).

2. Jurisdiction (where proceedings may already be on foot in another country, etc).

So my question in specific is that if there is already a divorce case filed in India can he still approach the Australian courts and seek divorce on the basis of 12 months separation and will the court accept his divorce petition and give him a divorce grant. Can she oppose this divorce on the basis of jurisdiction in Australia? as she intends to drag the case in India for years together?

My brother and his son are Australian citizens and she is a permanent resident.

She has taken the kid to India without my bothers consent and she is also getting weekly childcare benefit from my brother.

How is that she can claim all the benefits from Australia but when it comes to fighting the legal battle she wants to fight in from India where the system is inefficient?
 

Atticus

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6 February 2019
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So my question in specific is that if there is already a divorce case filed in india can he still approach the Australian courts and seek divorce on the basis of 12 months separation

If he meets the requirements of an eligible applicant then yes...

will the court accept his divorce petition and give him a divorce grant. Can she oppose this divorce on the basis of jurisdiction in Australia?

As far as jurisdiction goes, as long he is an Australian citizen, then Australia is a suitable jurisdiction for him to apply... She may choose to oppose it... Not sure if the jurisdiction argument would hold up though...
 

Scruff

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25 July 2018
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He has an option of withdrawing the case and refiling however if his partner intends to file DV and harassment case in india against him and ruin his life.
I can understand how harrassment can occur across borders - but how on Earth does someone think they will be successful with a domestic violence claim against someone who's in another country? To me, that's just ridiculous unless I'm missing something?
 
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Sridhar

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25 August 2019
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The law india is inefficient and it can take years before you can get divorce, and its tactical advantage for them so that they can drag the case for years together and harass the other person and his family. And I have checked with many lawyers in Australia and in India and no one have ever given me a concrete response for this question.
 

Atticus

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6 February 2019
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I have checked with many lawyers in Australia and in India and no one have ever given me a concrete response for this question.

Possibly because it has not been tested in a court here...

Your question being ... Can I file for Divorce In Australia with pending case in India. Given the info you have provided, the jurisdictional requirements are met so he should be able to file... You would need to have her served in India either directly by a server or via her lawyers or family if they accept it & sign.... If they don't you may have to seek a dispensation of service from court...

the thing is, until an application is before the court you won't know.... nobody can tell you with 100% certainty the result if she opposes it on the grounds of 'case pending in India'.... A grant of divorce here should have no effect on a settlement case in India if property is the issue.
 
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