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Comparing The Family Courts In England And Australia For Divorce And Finance

I have been fortunate in my career to have worked extensively in both England and Australia. Since my return to practise in England almost nine years ago, I am often asked to compare the two Family court systems – what are the main differences? 

Last month I discussed the differences in the 2 court systems when making an application for a child arrangements order (known as a parenting order in Australia). 

This month I’ll focus on divorce and finances. 

In England, we have to start divorce proceedings before we can start financial proceedings. A final financial order can only be made when the Conditional Order of Divorce has been granted, and it only becomes enforceable when the Final Divorce Order is made. Unless financial claims are dealt with and / or dismissed by a Financial Order, then financial claims remain open. Finalising the divorce does not finalise financial matters. 

Things work differently in Australia. You can start financial proceedings at any time, and without divorce proceedings having been started. You can get a final financial order without even being divorced. Once divorce proceedings have been finalised, the parties have 12 months from the date of the final divorce order to start financial proceedings. If financial proceedings haven’t been started before the expiry of the 12 month period, parties must get permission to file the financial application out of time. Permission will only be granted with good reason. 

The case of Vince and Wyatt is well known in England. Mr Vince and Ms Wyatt married in 1981, separated in 1984 and divorced in 1992.   At the time of the divorce, neither of them had much money, and neither applied for a final financial order. Mr Vince went on to establish his own extremely successful business and became a multi-millionaire, and in 2011 Ms Wyatt issued proceedings for a financial settlement. The parties eventually reached an agreement as to a financial settlement. However, the case was a clear reminder to all that unless financial claims are dismissed and / or otherwise dealt with by way of a financial order, financial claims will remain open. 

Could there be some benefits to the Australian system? For example, if at the time of separation there are limited assets to justify the expense and effort of seeking a clean break financial order, a bar on claims after 12 months from the parties divorcing can provide greater certainty. Or consider a case where there are no assets but also domestic abuse. The survivor of domestic abuse might not wish to incur the expense (or have the stress) of seeking a clean break financial order, and in any event, the perpetrator might refuse to enter into meaningful negotiations in a bid to perpetrate further abuse. Since financial claims lapse after 12 months, this system may be preferable for the survivor, since they will know that after 12 months, their former spouse cannot (without good reason) make a financial claim in respect of their marriage. 

For clients who have the opportunity to deal with their family law matter in more than one jurisdiction, it’s important to seek advice from an expert who is able to consider both jurisdictions and discuss the benefits and risks of dealing with the matter in each. We have a number of experts in our International Team of Excellence who are either dual qualified or have an extensive network of contacts internationally to be able to assist clients holistically.