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Divorce - Court Jurisdiction

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que View Drop Down
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Joined: 26/December/2017
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  Quote que Quote  Post ReplyReply Direct Link To This Post Topic: Divorce - Court Jurisdiction
    Posted: 26/December/2017 at 17:01
Hello everyone and Happy Holidays!

A married couple broke up several years ago.
One of the spouses still lives in Australia, another spouse lives overseas.
The spouse who lives overseas wants to file for divorce in Australia based on the fact that the other spouse "ordinarily lives in Australia & has done so for 12 months immediately before filing this application" (which is true).
Technically, that should be enough for the court to obtain jurisdiction over the case.

How does the petitioner (who lives overseas) prove to the court that the respondent lives in Australia and "has done so for 12 months immediately before filing this application"? (if the respondent is unlikely to respond to the application or attend the hearing).

P.S. There are no kids involved (so, there is no jurisdiction over kids issue).

Thanks

Helpingafriend View Drop Down
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  Quote Helpingafriend Quote  Post ReplyReply Direct Link To This Post Posted: 26/December/2017 at 19:32
You don't need to prove it, you claim the relevant qualifications for jurisdiction in your application and you swear that the facts in the application are true when you sign it

Note that you will have to arrange to serve the application on the other spouse

jaazzz View Drop Down
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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 26/December/2017 at 22:06

As above poster has stated...

The respondent has the opportunity to dispute the facts & provide proof to the contrary... If the respondent does not respond, then the application would continue on unopposed to the next level, whichever the court sees fit in the circumstances..



Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

que View Drop Down
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  Quote que Quote  Post ReplyReply Direct Link To This Post Posted: 27/December/2017 at 10:03
Thank you for your replies guys.
That's a good news.

I was confused by the following information from from the Federal Circuit Court's website:

If the eligible party is relying on a citizenship certificate or valid visa entitlements you will need to provide proof to the court by either of the following documents:
    Your citizenship certificate.
    Your passport showing the date of arrival at least one year prior and a valid or current visa.


Also, their tech support says they would need a copy of at least one of the following documents:

    Australian citizenship certificate
    Australian passport or other proof of citizenship.
    Current and legible visa (ensure the visa has NOT expired)
    Green Medicare Card
    Birth certificate (if born in Australia)
    Centrelink Health care Card


So, I guess that only applies when the petitioner lives in Australia? (obviously, I don't have a copy of a current visa or Medicare card of the respondent)

que View Drop Down
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  Quote que Quote  Post ReplyReply Direct Link To This Post Posted: 27/December/2017 at 10:13
By the way, the application also has the following question:
regards Australia as his/her home and intends to live indefinitely in Australia

The instruction says that, in case of a solo application, the petitioner "should not refer to the intention of your spouse unless you can provide further information as to how you know what your spouse's intentions are".

Can the petitioner subpoena the respondent, so the respondent would provide a declaration answering that question (or attend the hearing to answer it in front of the judge)?

Thanks

Helpingafriend View Drop Down
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  Quote Helpingafriend Quote  Post ReplyReply Direct Link To This Post Posted: 27/December/2017 at 18:32
You shouldn't need to rely on the "intends to live indefinitely in Australia" if the other party has been in Australia for the last 12m you will qualify under (d)

It will be up to the other party to respond if they believe any of the information you provided is wrong. You serving the application on the other party puts them on notice that unless they say otherwise, the divorce will be granted based on the information in your application. It is not a subpoena as such, but has the same effect in a practical sense

que View Drop Down
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  Quote que Quote  Post ReplyReply Direct Link To This Post Posted: 28/December/2017 at 07:59
Hi Helpingafriend,
Thank you for your response!
Originally posted by Helpingafriend

You shouldn't need to rely on the "intends to live indefinitely in Australia" if the other party has been in Australia for the last 12m you will qualify under (d)

I understand that from the Australian law's point of view it is more than enough that the other party has lived in Australia for the last 12 months.
The problem here is the law of a foreign country where I need this divorce to be recognised. They would not recognise any foreign (including Australian) divorce automatically. I (preferably) need more evidence that the other party domiciles in Australia.
From my knowledge, the other party does domicile in Australia, but the instruction to the divorce application form doesn't allow me to select (a), because I shouldn't speak about what the other party intends to do... So, it would be great if the other party could answer that question (is there a way to make them do that?). It would be easier to prove that the divorce is valid.
Thanks once again.

Helpingafriend View Drop Down
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  Quote Helpingafriend Quote  Post ReplyReply Direct Link To This Post Posted: 28/December/2017 at 11:24
Aren't there other ways to prove to your country of residence that the other party still lives in Australia?

Check with the court whether the divorce documents will indicate the grounds on jurisdiction was applied ...

My divorce document from the mid 90s has Decree Nisi and Decree Absolute on the same page and the Decree Nisi states that the applicant was domiciled in Australia. At the time the other party was doing contract work overseas, but both parties were Australian citizens and it doesn't say that

But here is a more recent example of a document I found online - image

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