What Happens to Property and Kids if the Ex Moves Overseas?
After a relationship breaks down, some people can move on in unusual ways. Some re-partner with mind-boggling speed, others wander off to ‘find’ themselves, and others indulge in quite a spot of retail therapy. For some, a full ‘geographical’ is considered necessary, with the ex-spouse deciding to pack the bags and move overseas. In a relationship where neither children nor any property of note have come into being, this might not be problematic at all. But in the opposite scenario – say you have been left in Australia the with kids and/or assets yet to be sorted out – it can be challenging to establish what on earth you should do. We’ll look at a couple of scenarios to assist you with your decision-making.
Was a parenting agreement reached beforehand?
In the best case scenario, a detailed parenting plan or order will have been made to ensure clarity about how and when the kids will see both parents. If you are the residential parent, the plan/order could include, for example, an annual or more frequent trip for the kids to visit their relocated parent. Or the arrangement might be that ex comes back to Australia at agreed times to spend time with the children. Clarity would of course be needed around dates, travel costs and accommodation venues. Assistance in drafting this is highly recommended to ensure that there are no unpleasant surprises down the track – your specialist family law solicitor can guide you through this process.
Or a case of take-off?
But what happens if your find yourself in the frightening predicament of your ex having taken the children overseas without your permission? This is an unfortunate and complex situation, but it can be resolved in many cases – if necessary by reference to the Hague Convention for the return of children.
If you are the non-residential parent and you are in contact with the children and/or ex-spouse, there is some possibility that contact arrangements could still be organised, despite the distance and circumstances. These are sensitive and often complex matters. It is essential to seek timely advice from an expert family lawyer should you find yourself in this difficult situation.
The Australian system of family law is strongly based upon the best interests of the child and these will be incorporated into any decision around the children’s whereabouts and parenting options. In some cases, recovery orders can be issued by the courts.
Alone with the property
One disconcerting situation can be where the relationship ends and your ex takes off overseas for an extended period of time –without any consideration about the division of assets.
You could in fact be enjoying this new single life and not giving much thought to the property side of your separation! Yet if a time comes when you wish to deal with the assets of the relationship, the absence of the wandering ex-spouse could become a definite challenge for you. For example, you may have become tired of paying for the mortgage alone, and want to downsize. Or you may have received a postcard asking you to ‘just’ split things down the middle! How do you proceed?
Discussing and dividing
If you are in touch with the ex-spouse and there is general agreement to divide the assets, their overseas location need not be an impediment to getting the property split underway. If communication is amicable, you could speak over the telephone or via email to nut out the basic agreement. Once you have this and all relevant financial documents, you can now discuss with your family lawyer the best way to proceed. There may be issues around the ex’s current residency status that might affect any sale of joint assets. But what if your spouse is uncontactable, or won’t agree to any financial details? This tricky situation requires expert advice to canvas available opportunities to sell or deal with matrimonial assets. Even if property is only in your name, it will generally be difficult for any property lawyer to release sale proceeds if they are aware of ‘interests’ – such as your spouse’s probable claim. This is a situation where solid professional advice can assist you to move forward on these issues.
Don’t be disheartened by the complexities of having a spouse who has ‘taken off’. Our family law solicitors have dealt with these and many other thorny issues regarding post-separation arrangements. Striving to maintain contact with the former spouse, gathering all relevant materials and seeking timely advice about your circumstances can all help you to obtain a fair resolution of your post-relationship matters.