It is increasingly common for someone to own properties in more than one country. If a couple separates, particular care is needed to make sure one person is not left with an unenforceable agreement.
The recent Full Court case of Yadu & Orjit [2022] FedCFamC1A 79 considered whether foreign property Orders could be enforced in Australia under the Family Law Act 1975 (Act), in the circumstances of that case.
Consent Orders were made in another country. The orders required the husband to transfer an interest in a property in Western Australia to the wife. The husband obstructed the wife’s attempts to transfer the interest, so the wife applied to the Family Court of Western Australia for injunctions compelling the husband to transfer the interest. The husband opposed the application.
The wife was successful and the Judge made Orders requiring the husband to transfer the property to the wife. The husband appealed, arguing the Orders were beyond the Australian Court’s power and not a “matrimonial cause”.
The Full Court ultimately decided the injunctive Orders were a matrimonial cause under s114(1)(e) of the Act, in the particular circumstances of the case, and upheld them. So, the Australian court did make the husband transfer the property to the wife.
There is no hard and fast rule that the Australian courts will always enforce an Order made by an overseas court when a couple separates. This case was decided on its particular facts. There may be cases where enforcement of foreign property Orders under the Family Law Act 1975 may be more difficult or impossible. For example, if one of the parties dies before Australian proceedings are issued. In those circumstances, it may be necessary to consider other options, including claims under estate law, property law or equity.
Avoiding issues with enforcement of foreign property Orders before they arise
These risks can sometimes be avoided by preparing a settlement agreement that meets the requirements of each relevant country, so it can be enforced in each country.
Another alternative may be to obtain “mirror orders” from the Courts in each relevant country. Each country’s Court Orders would include consequences for any party who is not co-operative and does not comply with their obligations under the Orders made by the other country.
Conclusion
It can be incredibly frustrating for someone to have obtained foreign property Orders only to find that enforcing them in Australia may not be straightforward, or even possible.
It is much better to try to avoid problems before they arise by ensuring that any settlement is enforceable in each relevant country. So, we recommend you speak to us before having a settlement formalised, by a settlement agreement or by Court Orders.
However, even where that opportunity has passed and no matter what stage you are at, our experience means we can work through these issues, and obtain the best possible outcome for you.
