Pursuing a Divorce Settlement in Australia – when a foreign Court has already dealt with it

Clayton & Bant Case B21/2020

Should a party be able to pursue a divorce settlement in Australia if a foreign Court has already dealt with matters between the parties? That is, in somewhat simplified terms, the question to be determined in a case currently before the High Court of Australia.

The facts that give rise to the dispute are as follows:

The Wife is an Australia citizen.
The Husband is a citizen of the United Arab Emirates.
The parties married in the UAE in 2007.
The parties separated in Australia in June 2013.
The Husband has “extensive property interests in the United Arab Emirates, Europe and Asia”.
In July 2013, the Wife started a Court case in Australia.
In July 2014, the Husband started a Court case in UAE.
In February 2015, the UAE Court made Orders. The Court ordered the Wife to repay to the Husband a dowry (an amount of 100,000 Dirhams the Husband paid to the Wife at the time of marriage).
In February 2015, the Husband asked the Australian Court to prevent the Wife from proceeding further with her Australian case (described as a “permanent stay” of her case). The basis for seeking stay of the Australian case was that the UAE Court had already dealt with the issue.
In September 2018, the first Australia Judge to consider the issue decided that the Wife should be able to continue with her Australia case.
In November 2019, an Appeal Court decided that the Wife should be prevented from continuing her Australian case.
The Wife then appealed to the High Court (the current case) and the issue remains whether the Wife should or should not be able to continue her case against the Husband in Australia.

The two Australian Courts that have dealt with the case so far have each said clearly that it does not matter whether the foreign decision is more or less generous than what an Australian Court might have awarded. What matters is that the question that the foreign Court resolved is sufficiently the same as the claim sought to be pursued in Australia.

In the High Court:

The Wife says, in relation to the division of assets, that the UAE Court had no jurisdiction with respect to property located outside of the UAE. In respect of spousal maintenance, the Wife says there has never been any determination of that claim by the UAE Court. In effect, the wife says that what the UAE Court did was limited – leaving room for the Australian Court to deal with financial claims between the parties.
The Husband says that the common feature of the Australian case and the UAE case is that both concerned the financial consequences to the parties arising from the breakdown of their marriage. In effect, the husband says the UAE Court has dealt with the entirety of matters between the parties – leaving no room for any Australian case.

The High Court heard arguments about the issue at a Hearing on 9 September 2020. The Court is currently considering the issue and will deliver a Decision in due course.

William Sloan I Director I Accredited Family Law Specialist

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