What happens if I’ve separated and we have property overseas?

Have you separated?
Do you or your ex have property overseas?
Are you wondering how it would be dealt with in your property settlement?

If you answered yes to all the above, you should be reassured to know that Australian Courts have jurisdiction to make orders which require an individual to deal with overseas property in a certain way. For example, the Courts could order the individual to sell or transfer the property.  Or they could assess ownership and value of the overseas property and then treat it as a financial resource – this means that the overall property division may be adjusted to take into account that one of the parties has the benefit of this financial resource.

Property settlement considerations

Overseas property will, generally-speaking, form part of your assets, liabilities and financial resources to be divided in any eventual settlement in line with the following approach:

1. Is it appropriate for there to be a property settlement? If the answer is yes then;
2. What property is available for division including overseas property?
3. What are the contributions made by each of you towards the accumulation of your property (including overseas property)? These contributions can be financial (eg who earned more, who introduced lump sums of money), non-financial (who did more of the duties associated with caring for your children and the home), directly by you or indirectly by a third party on your behalf;
4. What future needs do each of you have for which adjustments may need to be made so that you can, as much as is possible, recover financially in the future at the same rate? Some of the grounds for adjustment include if one party earns more than the other, or one of the parties has the primary care of a child (or children) under the age of 18.
5. Is the proposed division just and equitable? If not, further adjustments may be made.

Overseas property checklist

If you have separated and you do have property overseas, consider the following checklist:

• What property is located overseas? Is it land, a house or bank accounts? Or something else?
• Who owns that property? In whose name is that property registered or held? In the case of real estate, you may consider speaking to a property lawyer to discuss what options you might have to protect your interests in that property.
• What contributions have you or your ex made to that property? This is an important question to consider if the property is not in your name. For example, in the case of land overseas owned by your ex you might turn your mind to:
  1. whether you or your family contributed to the acquisition of the land
  2. how that land was acquired in the first place if you were not involved in its acquisition. Was it a gift to your ex or an inheritance from a family member?
  3. whether you or your family made any improvements to that land using your own skills, labour and expertise
  4. if the land was purchased for investment, who received the benefit of any returns?

Your answers to these questions may determine not only how the overseas property is dealt with by the Court but also what the overall property division is likely to be.

Every case is different and it is important to obtain advice at the outset so that you are in the best position to protect your interests in any overseas property and finalise a binding property settlement.

Get in touch

To discuss anything in this article or any other family law issue, please contact Joel or any member of our Family Law Team or call our team of experienced and caring family lawyers on 1800 730 842.

We are ready to discreetly and confidentially help you with any matters arising out of your separation.