Are overseas orders and judgments in property settlements recognised and enforceable in Australia?

In family law property settlements involving more than one international jurisdiction, complexities can arise when an order or judgment directing one party to pay another a sum of money, or to transfer an interest in a property, has been made in another country. This raises the question of whether these foreign judgments are recognised and enforceable by Australian courts.

The enforceability of foreign judgments in Australia depends on the origin and nature of the judgment. It is governed by statutory regimes, specifically the Foreign Judgments Act 1991 (Cth) (the FJ Act) and the Foreign Judgments Regulations 1992 (Cth) (the FJ Regulations), which apply to judgments from Scheduled Countries. Australia also has a bilateral treaty with the United Kingdom for reciprocal recognition and enforcement of judgments.

In the absence of international agreements or statutes, common law principles are used to enforce foreign judgments.

General criteria to register a foreign judgment in Australia

To be recognised and enforceable in Australia, a judgment must:

• be a "money judgment", defined under the FJ Act as a judgment under which money is payable
• be rendered in the first instance in a superior court and specified inferior courts of the reciprocating jurisdiction in the FJ Regulations
• be made within the last six years
• be final and conclusive, and
• not have been wholly or partially satisfied.

Pursuant to section 5 of the FJ Act, an order made by an overseas court for the payment of money from one spouse to another can be enforceable as a registrable money order in Australia, or alternatively is enforceable under the common law procedure for the enforcement of judgments. However, the FJ Act specifically otherwise excludes matrimonial matters.

To register such "money judgments", proceedings must be initiated in the Supreme Court of the relevant Australian state or territory. Once registered, the orders can be enforced as original Australian orders.

Registering judgments regarding matrimonial matters: divorce, child support and spousal maintenance

In Australia, the Federal Circuit and Family Court of Australia (the Court) has jurisdiction to deal with the dissolution of marriage and will recognise the order or decree of an overseas jurisdiction.¹ Similarly, there are statutory regimes for the Court to enforce an overseas order made in reciprocal jurisdictions with respect to spousal maintenance or child support.² Orders in relation to Australian superannuation in the family law setting can also only be done by the Court.

Enforcement of overseas judgments regarding property in matrimonial matters

As the FJ Act does not apply to matrimonial matters and the alteration of property interests, the enforcement of overseas property orders is dealt with under the common law (i.e. law derived from previous cases rather than statutes).³ The question of whether to enforce an overseas order largely rests on whether Australia is the appropriate forum and there is a reason for the orders to be enforced in Australia (e.g. one party or the property is located in Australia).

There is no concrete rule in relation to the enforcement, as each case will be decided on its particular facts.

In the 2022 case of Lawson v Lawson,⁴ the Federal Circuit and Family Court of Australia addressed the issue of registering overseas orders made in the UK while considering whether Australia was an appropriate forum to address the matrimonial matters and property settlement, as opposed to courts in the UK. The case considered whether an order made in a UK court for the adjustment of the parties' property interests (excluding orders relating to Australian superannuation interests) could be enforced in Australia.

The wife submitted that the order made in the UK, which required the husband to pay her a sum of money and her contemporaneous transfer of property to him, was a money order that could be enforced in Australia pursuant to the FJ Act. However, the Court held it was not a money order as it dealt with the transfer of property. The payment alone from the husband to the wife was not capable of resolving the dispute on a final basis, as orders were necessary for the wife to transfer property to the husband in exchange for the money.⁵

The Court ultimately concluded that in relation to the issue of adjustment of property rights, neither jurisdiction could enforce the order of the other, having regard to the nature and location of the property of the parties.

In the 2022 case of Yadu & Orjit,⁶ the Full Court of the Federal Circuit and Family Court of Australia (Appellate Jurisdiction) considered whether final property orders made in Country B in relation to property in Western Australia were enforceable in Australia. The husband was ordered to transfer the Western Australian property to the wife, but refused to do so. At first instance, the wife successfully sought and obtained injunctions in the Family Court of Western Australia compelling the husband to transfer the property.

The Full Court held that the injunctions made compelling the husband to transfer the property fell within its own jurisdiction as being a "matrimonial cause" and thus upheld the injunctions. Both the husband and the wife were otherwise estopped from seeking further property orders in Australia because of action estoppel, Anshun estoppel and issue estoppel⁷ as the claims were determined on a final basis in Country B.

The Federal Circuit and Family Court of Australia also recently upheld in Sweeney & Burniss⁸ that a money order made by an overseas court can be registered and enforced in Australia, however the issue of alteration of property interests cannot.

Mirror or reciprocal orders

In cases where overseas court orders cannot be registered or enforced in Australia after an order is made, it may be possible to make “mirror orders” or “reciprocal orders”. These involve obtaining new orders in Australia that replicate the arrangements or agreement reached by way of consent orders.

Key takeaways

1. Australian courts can enforce overseas "money judgments".
2. The provisions of the FJ Act are not available to enforce overseas orders for adjustment of property interests, unless they strictly qualify as money judgments. This reveals a limitation in the current legal framework.
3. The registration of overseas judgments and orders concerning property alterations in family law is unclear and subject to ambiguity. This evolving area of law could spark future legal discussion, particularly from a common law perspective. It is essential to obtain specialist legal advice in these circumstances.
4. Whether an Australian court order can be enforced in another country is an issue for which legal advice should be obtained in the proposed overseas country.

If you require assistance in relation to a property settlement involving international jurisdictions, please contact our experienced family & relationship law team

¹ Section 104 of the Family Law Act 1975 (Cth).

² This can be done by way of an application to Services Australia (within the Commonwealth Department of Human Services), being the body that assesses and determines, collects and registers child support and spousal maintenance orders.

³ Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435 at [23]–[29]; Martin Davies, Nygh’s Conflict of Laws in Australia (Lexis Nexis Butterworths Australia, 10th edition, 2020) at [40.2]–[40.3]).

⁴ [2022] FedCFamC1F 287.

⁵ Also see: Gilmore & Gilmore (1993) FLC 92 353.

⁶ [2022] FedCFamC1A 7.

⁷ A party being effectively stopped from bringing a claim in fresh proceedings which should have been brought in the original proceeding/otherwise already determined.

⁸ [2023] FedCFamC1F 1032.