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

Discussion in 'Family Law Forum' started by kannan, 25 October 2015.

  1. kannan

    kannan Member

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    Hi,

    I am an indian born Australian citizen. I got married to an Indian girl, and lived together in Australia for 9 months, but the things didn't work well between us and she left for India by cancelling her Australian spouse visa. I went to India to set things right, but it failed. So I filed for a divorce case in India on 2011. The case is still pending in the court because my wife has decided to ruin my life without giving a divorce. She also filed a fake Domestic violence case (full of lies) in India. Even that is also pending in Indian court.

    We are separated for 4 years, and now I want to go back to Australia. Since I regard Australia as my home and intend to live in Australia indefinitely, can I file for a divorce there?

    1. Can my wife oppose my divorce petition since she wants to ruin my life by not granting me a divorce and have 2 cases (domestic violence and divorce) pending in India already ?
    2. I heard about the extradition treaty between India and Australia. Will I be pulled back to India for the Domestic Violence case?
    3. If my wife opposes the Australian court saying that she wants this divorce case to be conducted in India only, will the Australian court cancel my divorce application?
    4. My wife doesn't even have a spouse visa. How can she serve my divorce application?
    5. if my divorce is granted, will my wife get the Australian citizenship?

    Kindly help me rid of myself of this cruel woman who is planning to ruin my life.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Kannan,

    You can apply for a divorce in Australia if you:
    • regard Australia as your 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.
    You also need to show that you and your spouse have lived separately and apart for at least 12 months and there is no liklihood of you resuming the relationship.

    It doesn't matter if the other person will not sign the divorce papers, they simply become a respondent to the application. It doesn't prevent you from obtaining a divorce as the sole requirement is basically irretrievable breakdown of the relationship which is evidenced by the 12 month separation period.

    As far as I know - nothing your wife can do can prevent the divorce application from proceeding in Australia. I'm not sure how this will impact her citizenship or visa rights.
     
  3. kannan

    kannan Member

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    Hi Sophea,

    My wife is in India. She doesn't have a spouse visa. How can she respond to the court hearings? Do I need to give her spouse visa / citizenship? Or can she respond to the divorce from India itself?

    Does my son get an Australian citizenship by default without my approval ?
     
  4. Tim W

    Tim W Lawyer

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    Did you get married in India, or in Australia?

    If in India, has your foreign marriage been registered in Australia?
     
  5. kannan

    kannan Member

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    We got married in India. The marriage is not registered in Australia.
    1. I am very keen that my wife should not get Australian citizenship through me in the way of divorce.
    2. Mostly, she probably would not respond to the Australian court from India or she would probably say that the divorce should not be heard in the Australian court, or that she would say that divorce should not be granted to me.

    She is desperate that I should live alone forever in the future and not marry any other woman.
     
  6. Tim W

    Tim W Lawyer

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    In which case I agree with @Sophea
     

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