Australia is a migrant society where the majority of the people have some form of social or economic ties with at least one other country in the world, and this can present a problem for our Courts when cases involving foreign properties are being litigated in our Courts.

One of the early cases relating a property out of jurisdiction, Commonwealth v Woodhill, was heard in the Supreme Court of NSW in 1915, and appealed to the High Court in 1917, confirming the adoption of the principle espoused in British South Africa Co v Companhia de Mozambique, which restricts a Court in Australia from adjudicating any matter which is necessarily connected with a particular locality beyond its State or Territorial boundaries, bar for a few ill defined exceptions.

So, what happens to the foreign assets of couples undergoing separation when the matters are litigated in Australian Courts?

First, section 79 of the Family Law Act 1975 gives the Court power to deal with the properties of a separating couple or each of them without any territorial or other restrictions other than requiring any order to be just and equitable. Second, the Mozambique Rule restricts a court from entertaining a claim involving the determination of the in rem title to foreign land rather than in personam rights and obligations between the parties, and the powers exercised by the Family Law Courts are rights in personam, hence is not restricted by the application of the said principle. Finally, most matters that involve third party rights in property in the Family Law jurisdiction will involve the principles of equity, which falls under one of the “ill-defined exceptions” mentioned earlier.

Any cases involving foreign properties and/or laws of a different country can be very complex and at Longton Legal, we are blessed with lawyers who specialises in court cases involving these complex issues over various practice areas. So if you have any disputes relating foreign legal principles or properties, remember to get in touch with us to explore what your possible remedies are.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*