Will marriage and divorce in Thailand be recognized in Australia?
Will a marriage in Thailand be recognized in Australia?
Generally speaking, Thai marriages will be recognized under Australian law provided the parties to the marriage meet certain conditions.
For the marriage in Thailand to be recognized it must have been compliant with Australian law in the following ways:
- Neither party at the time of the marriage can be married under Australian law to another person.
- Both parties must have been of marital age, i.e. above 16 years for people domiciled outside Australia.
- The parties must have been in relationships prohibited by Australian law i.e. not incestuous.
- The marriage must have been consensual and both parties must have had the requisite mental capacity to understand the ceremony.
Will a divorce in Thailand be recognized in Australia?
Accordingly, if the marriage is recognized in Australia, it is likely the divorce will also be recognized in Australia. This is pursuant to a few conditions; which will be elaborated on below.
For Australia to recognize a divorce in Thailand, a party to the marriage must have had a sufficient connection with Thailand, pursuant to Section 104 of The Family Law Act. One means of satisfying this is that one party must be ‘ordinarily resident’ in Thailand at the ‘relevant date’ of the divorce. The ‘relevant date’ refers to the date of the institution of the proceedings that resulted in the divorce. ‘Ordinarily resident’ will be satisfied if the couple’s last place of cohabitation was Thailand, or if they were living in Thailand continually for not less than one year prior to the aforementioned relevant date. Additionally, if one of the parties is a national of Thailand, this would be satisfied. Therefore, it is assumed that divorces between Australian and Thai spouses would not generally be complicated by this provision, so long as the Thai spouse is a Thai national. This would only manifest as an issue if both parties were Australian nationals.
Once the above has been established, the divorce will be valid in Australia, so long as the following two issues did not occur during the divorce:
Pursuant to Section 104(4)(a) The divorce will not be recognized if either party was denied natural justice during the divorce process. For example, this could mean that one of the parties was not given sufficient warning of the impending divorce and had not been given a chance to be heard at the divorce hearing. Relevant to Thailand perhaps an Australian spouse’s divorce would not be valid if the Australian did not properly understand the divorce process if it was conducted in Thai language.
Pursuant to Section 104(4)(b), the divorce will not be recognized if such recognition would be manifestly contrary to Australian public policy. It is unclear as to the definition of this and what it would mean in the context of foreign divorces. Often the ‘best interests of the child’ are the focus of Australian family law policy, so perhaps a divorce that compromised the interests of the child would not be recognized in Australia.
Accordingly, whether the divorce was a contested or uncontested divorce is inconsequential in determining whether it will be recognized in Australia. What is relevant however is whether natural justice was adhered to with respect to the divorce proceedings, and whether recognizing such a divorce would be contrary to Australian public policy. If this divorce is recognized, then both parties are afforded the right to remarry under Australian law.