Immigration and separation in Australia

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Around a third of Australia’s population was born overseas. Many married and de facto couples have at least one person from another country. What happens if they separate in Australia?l

In this episode, we talk to experienced migration and family lawyer from Starlight Legal, Eva Liang, about:

how Australian Family Law recognises overseas marriages
how to divorce when one party is overseas
relocating children overseas in a separation
spousal visas and their effect on separation
cultural and linguistic barriers when dealing with the Family Court system
understanding different cultural values, best interests and family structures.

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You can find information about forms of family violence and links to support services in our blog Separation when there is family violence.

The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To find out more about how one of our Network Members could support your separation, take our free 3-minute Q&A.

Kate Russell
Around a third of Australia’s population was born overseas. Many married and de facto couples have at least one person from another country. So what happens if they separate in Australia? Welcome to the Separation Guide Podcast. I’m Kate Russell, and in this episode, I’ll be learning about immigration, separation, and family law in Australia.

Both of my parents were born overseas, as was my husband. We also got married overseas. And this is a very common story. Over half of us have at least one parent from another country. We’re a culturally and linguistically diverse nation. And this means we have culturally and linguistically diverse marriages, partnerships and families.. Australian couples have diverse values, and ideas about marriage and family structure, and about communication and discussing their relationship, and about seeking help.

International partnerships can also have added layers of emotional and legal complexity if English isn’t a first language, and if one person is on a spousal sponsorship visa.

Joining me today is our Network Member, Eva Liang. Eva is the principal at Starlight Legal, a Sydney law firm that focuses on servicing the Australian Chinese community. Eva has over 10 year’s experience specialising in migration and family law in often complex and sensitive matters. She deals with property settlement involving trust properties, business interests, corporate shares and offshore assets. She also works on children-related issues including sole parenting, international relocation, and extended families’, or grandparents’ rights. Eva’s passion is to advocate for migrants who have found themselves trapped in family law issues in Australia.

I began with the basics and asked Eva if a marriage is recognised under Australian law when the wedding took place overseas.

Eva Liang
Obviously, many people living in Australia were from overseas originally and sometimes they married overseas. And yes, once you’re married, you’re married. So even if you’re married overseas, your marriage is recognised under the Australian law.

Kate Russell
And I know that birth deaths and marriages you can register your marriage here. But that doesn’t make any difference? If you want to get a divorce. Whether you’ve registered your marriage in Australia or not, you still have to go through the same process. Is that correct?

Eva Liang
Yes, that’s right. It doesn’t matter. You don’t need to register your marriage in Australia. Whether or not you are going to divorce, once you’re married, you’re married. Your marriage certificate from the overseas can be used in Australia. Normally, you need to do a public notary process so that you can use your overseas marriage certificate in Australia formally.

Kate Russell
What is that process, Eva?

Eva Laing
It’s a public notary process. That’s the process that you have your foreign documents recognized by the Foreign Affairs Department so you can use your foreign documents, such as marriage certificate, in Australia formally.

Kate Russell
Okay, so that’s an extra step that people might have to go through.

Eva Liang
Yeah, that’s correct. Like for example, when you come into Australia and you want to apply for the partner visa and one of the essential documents is basically your marriage certificate. So what you need to do is you do a public notary version of your foreign marriage certificate and you submit that to the Department for the visa application purpose.

Kate Russell
I see. So it’s the same process if you’re actually going to go through the Family Courts and divorce?

Eva Liang
Well, yes.

Kate Russell
So if you do get divorced in Australia and you were married overseas, does that mean that your country of origin recognises that you’re divorced?

Eva Liang
The other countries, they should recognise your status as divorced. So it really depends on which country are you talking about. I believe for China and India, your divorce is recognised. For the process to apply, you need to do a public notary in relation to your Australian divorce certificate or the divorce order so you can use the certificate in other countries for legal purposes.

Kate Russell
Okay, so anyone who comes who has been married overseas, they should always check if they do go back to their country of origin about how that country recognises the status of their divorce.

Eva Liang
Well, yes. So I think the best way is if you are divorced, you do a public notary process in relation to the final divorce order so you can use that document when you need to prove to people in overseas or prove to the authorities in overseas that you are actually divorced in Australia.

Kate Russell
If a couple separates and one person actually goes back to their home country before the divorce is finalised, can that divorce still happen in Australia and progress without the second party here?

Eva Liang
Well, the Family Law Court in Australia has jurisdiction if one of the parties to the marriage is residing in Australia. So if it’s one party that leaves Australia and goes overseas, the Family Court still have to jurisdiction and the divorce can be finalised in Australia. And you can also launch an application for divorce in Australia. The point is to obviously get a lawyer to help you with the process because the lawyer will communicate with the Court if there is any problem or if there is a document that you need to show.

Kate Russell
And is that something that you find in your practice happens regularly or is it quite unusual for that to happen?

Eva Liang
Well, I’ve been helping migrants in Australia for the past ten years, so it does happen quite regularly because even during the time of separation, people often want to go back to their original country to benefit their families. So when they departed Australia, they appointed me as the legal representative and I finalised the divorce application for them. And if there is a need for parenting or property proceedings, that can also be done when they are overseas.

Kate Russell
Okay, so the person who’s gone overseas has a legal representative in Australia?

Eva Liang
Yes, that’s correct.

Kate Russell
Yeah. Okay. And you just mentioned parenting and I just wondered what’s the incidence of separated parents who want to take children overseas and what is the law around that when one party is staying in Australia and one party wants to relocate?

Eva Liang
You can always make a relocation application to the family court as part of the parenting arrangement in relation to the child. It always depends on what thinks is in the best interest of the child. A relocation order, it’s a difficult one because if the child has been living in Australia for many years, usually a Judge or a Family Court would be very hesitant to remove a child from Australia, as you can understand. And for the parent that does not want that to happen, does not want the child to go to overseas or relocate to overseas, the parents in Australia may want to stick injunction order from the court to refrain the other party removing the child overseas. And they can, on top of that, they can apply for an airport watch list then the child from leaving Australia to overseas. So that’s a way to make sure that the child remains in Australia during the parenting proceedings.

Kate Russell
Is a parent relocating the child without permission something you’ve seen happen in the past?

Eva Liang
It rarely happens. Basically, it would amount to one parent connecting the child. So that’s very serious. And that does not often happen. Even if a child has been relocated to another state and without the other parents consent, then the parent does not consent to the child relocating to another state of Australia can apply to the court and ask for the child to relocate back to where you were originally living.

Kate Russell
Right. So anyone who has children in a relationship really needs to understand that they don’t just have the right to up and go if they want to. Even though they were born overseas, their children’s right is to stay in their own country of origin.

Eva Liang
Yes. It really depends on what’s the best interest of the child. For example, if it’s in the interest of the child to go overseas to spend time with their grandparents, they also consider that there’s no risk of one parent taking the child to overseas and not coming back forever. Then the judge may still allow overseas travel.

Kate Russell
Right. Okay. But overseas travel on holiday and overseas relocation are kind of two different things, aren’t they?

Eva Liang
They are. You ask for different court orders in relation to those purposes.

Kate Russell
But you still need permission to go on an overseas trip as a holiday.

Eva Liang
Well, during the parenting proceedings, if both parties agree, then you can take the child to oversee travel. If an order hasn’t been made in relation to overseas travel, then yes. You do need to have a proper order in place before you take the trial to go overseas.

Kate Russell
So, get everything signed and sealed before making those kinds of decisions?

Eva Liang
That’s correct.

Kate Russell
What if you’ve married an Australian citizen? How long does it take between getting married and being eligible for applying for permanent residency? What’s the time frame?

Eva Liang
Once you’re married, you can apply for a partner visa to stay in Australia. The partner visa has two stages. It has a temporary stage and then you move on to a permanent stage visa. You need to be on a temporary visa for about two to three years before you can switch to a permanent visa. So it’s a very long process for many of the applicants to finally have the PR in Australia during the marriage. So they often need to wait for four or five years to finally get a PR.

Kate Russell
If you’re in that waiting period, so you’re married but you’re still in that temporary stage, what happens if a couple separates during that time period? What happens to the status of that spousal visa or the status of the person who is not an Australian citizen?

Eva Liang
The way our migration law structure the visa program is the Australian citizen provides a sponsorship for the overseas person during this whole visa application process. So if the relationship breakdown, then actually the sponsor needs to withdraw their sponsorship. And that basically means you will not get your permanent visa granted at the end and your visa will be cancelled.

Kate Russell
So you have to leave the country?

Eva Liang
You have to leave the country.

Kate Russell
Yeah, wow. And what if there are children in a relationship?

Eva Liang
That’s the exception. If you have an exception, such as you have children in a relationship, then it doesn’t matter that your partner cancelled the sponsorship, it doesn’t matter that your relationship broke down. You can still continue with your visa application because you under an exception that you can still be granted the permanent residency because you have a children of the relationship. And another exception is domestic violence.

If you have children and you suffer domestic violence, and it caused the breakdown of the relationship, you can get a permanent residency at the end. And even if you don’t have a children, but you suffer domestic violence, and domestic violence caused the breakdown of the relationship, you may also get the permanent residency and you can remain living in Australia.

Kate Russell
Right, that’s really important to know, isn’t it? Do you think that there are many incidences of perhaps one party holding that spousal visa over a partner who wants to separate? And is that recognised as a form of family violence?

Eva Liang
Just because the relationship breakdown and cancelling the sponsorship itself does not mean it’s violence among the other parties. But if a party threatening the foreign person about cancelling the sponsorship in the relationship, that may amount to domestic violence. Of course, it all depends on the circumstances. Of course, you need to show what’s the nature of the conversation, whether it’s just part of the normal breakdown or it’s a threat.

Kate Russell
If there’s some kind of coercive control or something happening?

Eva Liang
Along with probably financial control. Many of my clients believe that the sponsorship law actually caused a power imbalance in the relationship. Especially when there is already power imbalance caused by the unbalanced economic power between parties. The sponsorship system just worsen the situation and caused another layer of power imbalance between the relationships. Because even when the sponsor is not threatening the overseas person about cancelling sponsorship, it is just human nature for foreign person to think or believe that the sponsorship itself it’s added value to the following person when he or she is trying to settle down in Australia.

Kate Russell
It sounds like people feel that they’re in a more vulnerable position when they’re under a sponsorship visa than if they were here under a different form.

Eva Liang
They would often describe that as part of one of the many sacrifices they made by settling down in Australia. And some many migrants, when they experience such imbalance in their relationship, you can feel that they are vulnerable because settling down in Australia is the most important thing to them in their lives. Many of them don’t even want to discuss this issue with their friends or family and not to mention to seek independent legal help.

Kate Russell
That’s really taking me into the next thing I want to talk about with you, which is perhaps the perception of divorce in other cultures or perception of that position of vulnerability. Is there a stigma about talking about that? And might that be a blocker for some people to perhaps proceed with the separation because of that vulnerable position?

Eva Liang
That’s actually right. That’s a very correct observation. And many people will be very hesitant to go through divorce and separation because of the cultural stigma. And when they finally make up their mind to seek help and get divorced is often when they already suffer the domestic violence caused by the other party.
Kate Russell
So they’re not just choosing to separate because their marriage is not happy or they’re not being fulfilled. It’s actually something that’s gone a lot further than that, that’s pushing them to a separation?

Eva Liang
Yes. They often experience the violence before they finally make a decision to go down the divorce path, which I think is not right because migrants need to understand that they do have the equal recognition in the Family Court of Australia. So they should definitely discuss with their friends and families about the situation, about the unhappiness during the marriage relationship. And if they want to get divorced, they probably need to consider seeking independent legal advice about their visa status, whether it’s still the path they want to pursue and remain living in Australia or whether they want to go back to overseas, but to finalize their property matters in Australia or parenting matter in Australia when they’re overseas, because they do have the option.

Kate Russell
To go home and then have someone like you representing them here?

Eva Liang
Correct. So they don’t feel that they must endure the pressure from the other side and remain in Australia until they have the final status as a PR in Australia. They don’t have to. They always have the option to leave and to protect their rights, even when they are overseas. And I particularly want to discuss about the parenting case in this situation.

A much more difficult decision would be for parents to decide whether to leave their children in Australia or not when they are migrants and they don’t have a visa to remain in Australia and they are going through the separation, but they do have children. So a much more difficult decision would be whether they should leave the country. Which will probably mean that they will see less of their children. In such a situation, they obviously should talk to a migration lawyer such as myself about how to still get a visa to leave or visit Australia so that they can spend time with their Australian children or even they should consider applying for a parent visa so they can still have the PR at the end and live in Australia near to their children or with their children.

Kate Russell
Wow. It sounds like there’s so much complexity around this. And there are rules that do protect people, but if they someone going through this, hasn’t sought that professional advice, they might be just making decisions blind, really.? Or if they failing to act on something because they’re afraid. Do you think that’s the case?

Eva Liang
Yes, that’s absolutely right, because they don’t see the full picture and they don’t know there are other legal options, such as a parent visa, so they can still remain in Australia or live in Australia without the sponsorship for a partner visa when they do have children. And that’s very important.

Kate Russell
Do you think there’s a stigma about seeking professional help about your marriage or perhaps sharing information with people outside someone’s cultural circle?

Eva Liang
I think, given the confidentiality nature of our advice nowadays, it’s less and less of people afraid to seek legal advice because we were definitely not discussing about their situation with their friends and families without their specific permission.

They don’t talk to their families and friends, but nowadays, people do have better legal sense and they do go out to lawyers or inquiries to lawyers about their situation a lot more than the past.

Kate Russell
Okay, well, that’s good. So they’re reaching out for that professional advice, but perhaps not talking to the people who are in their lives about it?

Eva Liang
Yes, that’s what I think.

Kate Russell
Eva, you represent a lot of people from the Chinese Australian community. How do you make sure that your clients’ cultural values are considered by the Family Court in Australia?

Eva Liang
When people are discussing their parenting or property issues, they must discuss what’s the best interest in their values. So I think that’s something that’s very important and should be recognised by the Court, because what’s best for one person may not be what’s best for another. And especially when we’re talking about the parenting case, when there is children involved.

The court should always consider what’s in the best interest of a Chinese Australian child compared to the other child. So what I want saying is, yes, what we are doing is we try to present to the judges in the Family Court of Australia was their accounting value and what they usually do in the family, in the Chinese family and how that impacts on children’s value and how that benefits children when they grow up. Because for children, it’s a very important part for children that they understand their family heritage and children actually share the same value with their parents. And that’s very important.

Kate Russell
So the family court needs to consider that imposing an Australian value system upon a different cultural family is not necessarily in the best interest of that family or of those children.

Eva Liang
Yes, if it’s not necessarily in the best interest of the children’s parents, then we may also say that the same is not in the best interest for the child because you cannot discuss a child’s best interest without discussing the children’s parents’ best interests.

Kate Russell
What about the children’s grandparents? I know that you help people with grandparents’ rights as well. What kind of rights do grandparents perhaps have in a Chinese cultural setting that the family court might not consider in Australia?

Eva Liang
First of all, I would like to comment that in the Chinese culture, the grandparents are often much more involved in the parenting of children. And secondly, the Australian court is too much right to the parents of the children and does not give enough weight to the importance of the grandparents relationship with the children.

But that’s not right in the Chinese culture, because in Chinese culture, the grandparents often have have a much more meaningful relationship with the children. And it’s often in the Chinese family, Chinese cultural family, that the grandparents are actually the one taking care of the children every day in everyday life, when the children growing up, until the children can actually grow up to ten or before the children turn into ten, it’s often in the Chinese family that grandparents are taking care of the children.

Kate Russell
And is that an example where those cultural values of your clients need to be considered by the courts?

Eva Liang
That’s right. That’s exactly right. And it was a sad story that a child lost his mother when he was only four, and what happened was that the maternal grandparents want more time and to care for the children, but it was rejected by the Family Court. We tried our best to fight for the maternal grandparents rights. And we do believe that in the future, the grandparents should have the right to spend more time with their children, especially when there is one parent missing from the family.

Kate Russell
And I suppose that’s an issue that doesn’t only affect people from a Chinese cultural background. That’s something that is universal.

Eva Liang
I believe so.

Kate Russell
I have a very practical question now. What happens when clients don’t speak English as their first language, or perhaps don’t speak English at all? How does that impact the practicalities around drafting consent orders and submitting to the court?

Eva Liang
Yes, I think that amount to part of the power imbalance between the relationship. Because we do live in the English country, in Australia, and when one party does not speak the language at all, obviously that party needs extra help. The same rule applies in terms of protection of the person’s rights. What’s most important is for the non-English speaking person to have the correct legal advice and to fully understand their rights under the Family Law Act. And they need to understand that when they sign a document, that legal document means something.

For example, when they entering a binding financial agreement, if they just sign an agreement without understanding the meaning of the agreement, and without understanding the advantage and disadvantage of signing such document, and without understanding the legal consequences of signing such a document, it may cause a problem and it goes against their interest in the future.

There is a famous High Court case in 2017, the Kennedy case. The Kennedy case was about an overseas wife who came to Australia and signed a binding financial agreement just four days before the marriage. And at the end, the High Court ruled that the binding financial agreement is not valid, must be set aside because the overseas person being the wife, did not understand, and acted against the legal advice given to her when she signed the binding financial agreement, giving up her financial interest.

Kate Russell
But that case had to go all the way to the High Court.

Eva Liang
Yes, and as you can imagine, it cost a huge amount of legal fees for this overseas person to eventually get back what she was entitled to.

Kate Russell
So that is a massive escalation through Family Court up to the High Court. And obviously we would like to avoid escalation as much as possible.

So what is your advice, Eva, on how someone who perhaps doesn’t have English as a first language, what should they do to ensure that they understand what is written in that documentation and they understand the repercussions of signing that?

Eva Liang
I think understanding the document and taking precaution is just the first step and unfortunately I don’t have a solution for those people to actually better protect themselves in such a situation. Because even when they have the proper advice they will think what does that have to do with me? Because I’m just going to sign that document anyway so that I can remain in Australia and remain in this relationship

Kate Russell
So it’s coming back to that kind of vulnerable position.

Eva Liang
A very common problem migrants have is they enforced into signing bidding financial agreements before they can be sponsored for a partner visa. And I think that’s very common. I can’t say force. Sometimes the parties mutually agree to have their assets separated from each other so they can move on with the part of the sponsorship and helping the foreign person to get legal status.

But in some cases, the person may be forced into such a situation. And we do act for people in cases that speak to the court to set aside those fighting financial agreement that was signed under duress when you are being sponsored by an Australian citizen or PR for the permanent residency in Australia.

Kate Russell
That’s a scenario you see coming back to the power imbalance and the vulnerability of someone.

Eva Liang
If in the process you have signed such a such financial agreement, don’t feel that you do not have option. You still have option. You should go and talk to a lawyer about what happened when you signed the binding financial agreement and you didn’t really agree to it. And then you do have the option to go to the court and set aside the fighting financial agreement and fight for you for what you’re entitled to.

So before going to court, they can also engage a lawyer in the mediation to discuss those finding financial agreement that you entered into but you did not really agree to. So for even a few years down the relationship, if you still feel bad about this has happened, I think what you should do is to engage a lawyer and enter into a mediation with the other party and have an open discussion about this. And if the parties are mutually agreed, then that biting financial agreement can be terminated and you can have a new one to replace the old one.

Kate Russell
So there are avenues people can go down that don’t require court dates.

Eva Liang
We can have a better binding financial agreement in place if you feel upset by the first one that you enter into.

Kate Russell
And is that in the case of separation, or do you see that with people who are actually still married?

Eva Liang
Well, that can happen for people still in the marriage relationship. I think it’s quite valid for people to make an effort to stay in a marriage. So that’s why it’s very important to actually undertake a mediation with the other party and talk about the first fighting financial agreement that you not really comfortable with.

Kate Russell
People don’t like to talk about money in Australia that much anyway. Do you think there are issues from other cultures of it being even more something you might not talk about even with your spouse?

Eva Liang
Well, if the parties are coming from unbalanced economic power background, then I think it’s natural for one party to hide their assets from the other. But everybody knows that if the matter goes to the quarter, then you have to make a full and frank disclosure. I think people should have full and frank disclosure during the marriage. I know that it does not happen.

Kate Russell
Well, actually, Eva, you just said everybody knows that. But I don’t think everybody knows that. You know that and I know that. But I think a lot of people don’t realise that if they do go down the path of separation, that full and frank disclosure is required.

Eva Liang
Correct. Yes, but nevertheless, I think people should have open discussions if they do want to maintain their relationship, maintain a good and healthy relationship and not going down a set path. Maybe the appropriate thing to do is to have open discussion and involve a lawyer in the initial discussion with the other party so I think that would help them to have a good start of the relationship and keep going.

Kate Russell
Yes, because immigration and getting permanent residency it adds that whole legal layer on top of a marriage which obviously also has legal repercussions for anyone who gets married but there’s so many more layers so I absolutely agree that getting some legal advice is very important. Eva. You are fluent in Mandarin?

Eva Liang
Yes, I’m fluent in Mandarin and Cantonese.

Kate Russell
So obviously you can be of immense help to people from the Chinese Australian community. Do you think it’s really important for people to seek out someone who is from their own cultural community when they’re seeking legal representation?

Eva Liang
I think it is important for people to I think it is important for people to feel comfortable when they are talking to a lawyer. So overseas migrants, they may not feel as comfortable when they are talking in a second language, in their second language in English, and communicating to English lawyers. And if that’s the case, then they should often seek help from a lawyer that speaks their native language so they can feel more comfortable when they are expressing themselves. I think that’s important.

Kate Russell
Yeah. And to make sure that they understand 100%.

Eva Liang
Make sure that they understand, yes.

Kate Russell
And do you often see people using interpreters, especially within Family Law?

Eva Liang
Yes, I do. Often, migrants, they want to use interpersonal. Obviously, when they’re communicating with lawyers and they’re not speaking that language, they use an interpreter. But what I’m concerned about is the interpreter don’t have the legal knowledge. And sometimes when an interpreter is doing the legal translation, it may not be correct. I’m not saying that it happens all the time, but it happens quite often.

Kate Russell
So having someone who speaks the same language as you and also has the legal knowledge is the ideal situation.

Eva Liang
That’s correct. Because we can make sure that the correct message passed on to the client and the client can understand their legal rights. Whereas when people are using interpreters, because the interpreter may not understand what the legal advice was about, and when they do the interpretation, it can cause misunderstanding.

Kate Russell
And I suppose the interpreter doesn’t know what is the most important part of that information, or the thing that they really need to concept check with the client that they understand. Whereas the lawyer will.

Eva Liang
Yes. And it also get misinterpreted. And that’s what we say, that it lost in translation.
Kate Russell
So, what do you find that people from other cultures and countries value when they’re seeking legal representation?

Eva Liang
I think the most important thing they value is that the lawyer is providing ethical advice, not to just make financial gains for the lawyer. And they want to understand that the lawyer also understands their real needs, instead of just assisting with their legal proceedings. The lawyers understand their real interest. And if there is a way to achieve a better outcome for the client avoiding costly legal proceedings, that’s what the client wants their lawyers to do.

Kate Russell
So we’re looking for that cost transparency, best interests of the client at heart.

Eva Liang
Yes. Because people have many different interests. We can say that there are the real interests of the person in comparison to a legal interest of person. When we’re talking about a legal interest, it’s what a person can get under all these laws or under the protection of the law, what person is legally entitled to. That their legal interest. But that may not be the real interest of a person. Like what we just discussed. If for a migrant, what he or she wanted the most is to have the status, the legal status, to remain in Australia then she may act against their legal interest to achieve that goal.

Kate Russell
So really understanding what the goals of your client are correct outside just the what can you get out of this situation?

Eva Liang
Yes. So understanding the value of your clients and understanding the real interest of your client or having a conversation with your client about what they can achieve and what options they have, it’s very important to arrive in the correct, strategic legal plan.

Kate Russell
That was Eva Liang from Starlight Legal.

Dealing with cultural expectations and having concerns about visa status in a separation on top of everything else that needs to be dealt with, might put some people off moving forward and starting a new, happier life. We can put you in touch with a lawyer with specialist experience like Eva, who will understand your situation and help you navigate through. There’s also a link in our shownotes to help you understand a bit more about forms of family violence and visa abuse.

If you’d like to learn more about your options in separation, or you want to be put in touch with professionals to help guide you through, please go to theseparationguide.com.au and complete our 3-minute interactive Q&A, or check out our other podcasts and blogs. If you’ve found the information today useful, please subscribe, share and leave us a review. It’s a great way to help our podcast reach others going through separation.

In the spirit of reconciliation, The Separation Guide acknowledges the traditional custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their elders past and present and extend that respect to all Aboriginal and Torres Strait Islander peoples today.