Australian expats living in Singapore may have their assets spread across multiple countries. They may maintain bank accounts and investments overseas, and own one or more properties at home, for example. If a couple is considering divorce, the division of cross-border assets is very complex. ELAINE LI, Special Counsel and Accredited Specialist – Family Law at Lander & Rogers, looks at key considerations, where the divorce should take place, what are considered divisible assets and provides some legal advice.
If a couple are Australian expats living in Singapore, but they were married at home, should divorce be filed in Australia or in Singapore?
In Australia, the Court has jurisdiction to make divorce orders and will recognise a valid divorce order of an overseas jurisdiction.
Parties may apply for a divorce in Australia if, at the date of filing, either one is an Australian citizen, domiciled in Australia, or ordinarily resident in Australia and has been so for at least one year immediately before filing. The parties must also have been separated for at least 12 months, with no reasonable likelihood that they will resume married life together.
Whether the parties should issue proceedings for a property settlement in Singapore or Australia depends on a range of factors. This will determine whether Australia or Singapore is the most appropriate forum.
According to family law, what are considered divisible assets in a marriage by Australian family courts?
The Family Law Act 1975 (Cth) requires the Federal Circuit and Family Court of Australia (Australian Court) to identify all assets, liabilities and financial resources of both parties, regardless of whose name they are in or where the assets are located. This includes assets acquired before the relationship, during the relationship and even assets acquired after separation.
Assets commonly held by parties typically include:
- real estate
- bank accounts
- rental income
- shares
- investments
- motor vehicles
- cryptocurrency
- interests in companies or trusts
- superannuation
Money owed by a third party to either individual may be regarded as an asset. Gifts and inheritances received by either individual may also form part of the property pool. They will all be considered by the Australian Court as assets that can be divided in a divorce.
What legal advice can you give Australians living in Singapore on protecting individual assets at home, in the event of a divorce?
There are steps that Australian expats living in Singapore can take to protect personal and financial interests at home following separation. These may include:
Binding Financial Agreements: These agreements, which can be entered into before, during or after a marriage or de facto relationship, can record how the parties intend their property, financial resources and liabilities to be dealt with if they separate.
Interim orders and injunctions: These may prevent property from being sold, transferred or otherwise dealt with pending final resolution of the dispute. If an asset has already been sold, orders can be made to preserve the sale proceeds.
Consideration of trusts, companies and other structures: Property that is owned by a trust may not be treated as property of the parties unless it can be established that one or both of the parties has control over the trust.
Are divorce and asset division judgments following Singapore’s family law and made in Singapore courts, recognised and enforceable in Australia?
Under the Foreign Judgments Act 1991 (Cth), Singapore and Australia have reciprocal arrangements. This may enable a Singapore judgment according to Singapore’s family laws to be registered and enforced in Australia.
To be recognised and enforceable in Australia, a judgment that includes asset division must:
- be a “money judgment” for a definitive sum of money;
- be issued by a Singapore court exercising jurisdiction recognised under Australian law;
- be final and conclusive;
- be made within the last six years; and
- not have been wholly or partly satisfied.
An order made by a Singapore court for the payment of money from one spouse to another may be enforceable as a registrable money order in Australia. Alternatively, it may be enforceable under common law (that is, law derived from cases rather than legislation) for the enforcement of judgments. However, the Foreign Judgments Act 1991 (Cth) otherwise excludes matrimonial property settlements that require the transfer or division of property.
In cases where a Singapore court order cannot be registered or enforced in Australia, it may be possible to make “mirror orders”, replicating the Singapore court order within Australian law. This involves obtaining new orders in Australia that replicate the arrangements or agreement reached by way of consent orders. This way offers a practical enforcement alternative.
How can judgments made in Singapore courts regarding child support and spousal maintenance be registered in Australia?
Under the Child Support (Registration and Collection) Act 1988 (Cth), child maintenance orders and spousal maintenance orders may be registered and collected in Australia through the Child Support Registrar.
For an order made in Singapore, there are separate statutory regimes that may assist with the registration and enforcement in Australia. This can be done by way of an application to Services Australia, within the Commonwealth Department of Health and Human Services.
Such orders are registrable and enforceable where:
- a child lives with a parent in Australia;
- or alternatively where the child lives with a parent in Singapore and the paying parent lives in Australia.
About Lander & Rogers, family law specialists in Australia
Lander & Rogers is a leading international family law practice in Australia that specialises in global family law matters. They represent clients residing in Australia and overseas with financial and children’s issues, and their lawyers have the language capabilities and cultural understanding to sensitively navigate cross-border issues. For a tailored and confidential discussion with legal advice, reach out to the team here.
Like this article about legal advice for expats living in Singapore from Lander and Rogers? For more helpful tips, head to our Living in Singapore section. And don’t miss our expat’s guide to where to live in Singapore!
