Divorce here or Australia?

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  1. #21

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    If there are no substantial assets in HK and most of the assets are in Austrialia AND, most importantly, any children of the marriage under the age of 18 will continue to reside in Australia, then it would be far better to divorce under Australian family law.

    For the lower earning spouse, divorce under Australian law is likely to be more beneficial in terms of any spousal maintenance award.

    I have had a similar very messy case with divorce under UK matrimonial law even though my ex and children lived in HK. My ex was very 'smart' and moved back to the UK with the children (without my knowledge or consent) and filed for divorce under UK jurisdiction - effectively forum-shopping for a better divorce jurisdiction.

    No HK lawyer wanted to get involved in a case involving a different jurisdiction. There is also the question of 'enforceability'. Easy enough to get a judgement against one party in one jurisdiction but quite another thing to enforce it in another jurisdiction.

    Domicile and Residence are not the same thing, especially for divorce purposes but in the case being cited, Australia would be the best divorce jurisdiction, especially if the parties expect to continue living in Australia post divorce. It will almost certainly be more wife-friendly and will use a 50-50 split of assets to be a starting point rather than a finish point (although I believe HK matrimonial law does now recognise although not necessarily apply the principle in the English case of White v. White). The party with custody of the children will almost certainly retain the lion-share of any assets and be awarded the matrimonial home (assuming it is owned).

    Discobay - how old are the children? Please tell your friend NOT to remove any minors out of Australia without the written consent of the father or permission of the Australian Family Court. Then it would really get messy. Assuming the children are under 18 she would be compelled to return to Australia with the children (unless an agreement could be reached out of Court with the father) AND get a police record which could go against her in any subsequent custody battle. This is becoming a big problem with international marriages which break down.


  2. #22

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    The two girls are both under 18. I don't think either parent is likely to do a runner but it is interesting to hear what you say about Australian law wrt divorce. My mate is the husband/father by the way. He is of the view that he earned every cent they have whereas she has never worked during their marriage and brought no assets into the relationship. I cited to him what you said that divorce settlements start with the 50-50 split but he is standing firm.


  3. #23

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    Is he Australian or just working there? If Australian then I suspect he's not going to get much choice in this matter.


  4. #24

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    He is Irish and recently migrated to Sydney.


  5. #25

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    Well if he has two kids under 18 then he will be lucky to get away with just 50:50 IMO. The fact that his wife has not worked will not work in his favour. She will be able to argue (and it may be correctly) that the fact that she has not worked and instead dedicated herself to being a housewife means she has sacrificed her future earning ability and he will need to compensate this.

    My settlement was 100:0 to her plus a third of my future earnings, and we have no kids under 18.


  6. #26

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    It does rather depend on whether there is a "guilty party" or if it's a "no fault" divorce though...


  7. #27

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    Quote Originally Posted by PDLM:
    It does rather depend on whether there is a "guilty party" or if it's a "no fault" divorce though...
    Not in Australia, the UK (or many US states) it doesn't No fault divorce applies. (Yes - PDLM - as a Brit I know your comment was tongue in cheek!)

    Actually, if the wife has not worked then she will be in an even better position in terms of a settlement and her lawyer will probably be gunning for a 70/30 or 80/20 split.

    Hullexile is absolutely right. The wife's legal team will (successfully) argue that she has sacrificed her earning capacity and the husband will need to compensate this. He can also expect to hand over a sizeable percentage of his future earnings in terms of child support and spousal maintenance and will have to sign over the family home. He may get away with the Australian equivalent of a Mesher Order releasing his share of any equity once the younger children reaches 18

    For the non-earning (or lower earning) spouse with children who files for divorce the marriage contract ends with the issue of the decree absolute. For the higher earning, non-resident parent, the financial obligations will continue for many years to come (possibly until death or re-marriage of the wife).

    No point the husband digging his heels in and fighting. He is going to get royally shafted and will have his wallet ripped out through his testicles. Far better he takes it on the chin and spends his time, money and energy fighting for decent contact with his children which can be the issue that causes the most contention and possible returns to Court for years to come.

  8. #28

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    Is it taken that the children will live with the mother? He will not be happy to hear all your (helpful) comments on how little he will have left.
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  9. #29

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    Quote Originally Posted by discobay:
    Is it taken that the children will live with the mother? He will not be happy to hear all your (helpful) comments on how little he will have left.
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    I think generally courts assume that as the default position. And talking of default positions just tell your friend to put his balls on the chopping block and accept the inevitable. Sorry to be negative, but he is better assuming the worst.

  10. #30

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    Wow this is quite an insight into the depressing world of divorce. I'm warming to all those anti-wife jokes now.
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