McIntosh and Anderson

The Family Court of Australia considered a dispute between Ms McIntosh (the wife) and Mr Anderson (the husband) concerning property settlement. The parties were married in Australia but subsequently divorced in Country B. The wife sought property settlement orders under s 79 of the Family Law Act 1975 (Cth), and both parties agreed that the divorce obtained in Country B should be recognised under s 104 of the Act. The husband contended that the wife required leave under s 44(3) of the Act to bring her property settlement application, arguing that the limitation period in s 44(3) applied to overseas divorces.

The central legal issue before the Court was whether the limitation period prescribed by s 44(3) of the Family Law Act 1975 (Cth) applied to applications for property settlement where the parties' divorce had been granted in a foreign jurisdiction. The husband argued that the term "divorce order" in s 44(3) encompassed foreign divorces recognised in Australia, thus requiring the wife to seek leave to institute proceedings out of time. Conversely, the wife contended that s 44(3) was confined to divorce orders made under the Family Law Act and did not extend to divorces obtained overseas.

Murphy J determined that the limitation period in s 44(3) does not apply to overseas divorces. The Court reasoned that the term "divorce order" as used in s 44(3) is distinct from the broader definition of "divorce" in the Act and is specifically referable to orders made under the Family Law Act itself. The Court noted that the 2005 amendments to the Act introduced the term "divorce order" to replace terms like "decree nisi" and "decree absolute," which were inherently linked to the domestic divorce process. Therefore, a divorce obtained in a foreign jurisdiction, even if recognised under s 104, does not trigger the time limitation imposed by s 44(3).

The Court ordered that the husband's response seeking dismissal of the wife's application be dismissed. The parties were directed to confer and agree on directions for the further progress of the wife's application within 14 days, with liberty to forward agreed directions for chambers orders or, failing agreement, to list the matter before a Registrar.