Commonwealth Numbered Acts

Family Law Amendment Act 1983 No. 72 of 1983 - SECT 55

55. Section 104 of the Principal Act is amended-

         (a)  by omitting from sub-section (1) the definition of ''applicant''
and substituting the following definition:

'' 'applicant', in relation to the dissolution or annulment of a marriage or
the legal separation of the parties to a marriage, means-

   (a)  the party at whose instance the dissolution, annulment or legal
        separation was effected; or

   (b)  where the dissolution, annulment or legal separation was effected at
        the instance of both the parties-each of the parties;'';

   (b)  by omitting from sub-section (1) the definitions of ''overseas
        country'', ''relevant date'' and ''respondent'' and substituting the
        following definitions:

'' 'relevant date', in relation to the dissolution or annulment of a marriage
or the legal separation of the parties to a marriage, means the date of the
institution of the proceedings that resulted in the dissolution, annulment or
legal separation;

'respondent', in relation to the dissolution or annulment of a marriage or the
legal separation of the parties to a marriage, means a party to the marriage,
not being a party at whose instance the dissolution, annulment or legal
separation was effected.'';

   (c)  by omitting sub-section (3) and substituting the following
        sub-section:

''(3) A dissolution or annulment of a marriage, or the legal separation of the
parties to a marriage, effected in accordance with the law of an overseas
country shall be recognized as valid in Australia where-

   (a)  the respondent was ordinarily resident in the overseas country at the
        relevant date;

   (b)  the applicant or, in a case referred to in paragraph (b) of the
        definition of 'applicant' in sub-section (1), one of the applicants,
        was ordinarily resident in the overseas country at the relevant date
        and either-

        (i)    the ordinary residence of the applicant or of that applicant,
               as the case may be, had continued for not less than 1 year
               immediately before the relevant date; or

        (ii)   the last place of cohabitation of the parties to the marriage
               was in that country;

   (c)  the applicant or the respondent or, in a case referred to in paragraph
        (b) of the definition of 'applicant' in sub-section (1), one of the
        applicants, was domiciled in the overseas country at the relevant
        date;

   (d)  the respondent was a national of the overseas country at the relevant
        date;

   (e)  the applicant or, in a case referred to in paragraph (b) of the
        definition of 'applicant' in sub-section (1), one of the applicants,
        was a national of the overseas country at the relevant date and
        either-

        (i)    the applicant or that applicant, as the case may be, was
               ordinarily resident in that country at that date; or

        (ii)   the applicant or that applicant, as the case may be, had been
               ordinarily resident in that country for a continuous period of
               1 year falling, at least in part, within the period of 2 years
               immediately before the relevant date; or

   (f)  the applicant or, in a case referred to in paragraph (b) of the
        definition of 'applicant' in sub-section (1), one of the applicants,
        was a national of, and present in, the overseas country at the
        relevant date and the last place of cohabitation of the parties to
        the marriage was an overseas country the law of which, at the relevant
        date, did not provide for dissolution of marriage, annulment of
        marriage or the legal separation of the parties to a marriage, as the
        case may be.'';

   (d)  by inserting in sub-section (4) '', or the legal separation of
the parties to a marriage,'' after ''marriage'' (first occurring);

   (e)  by omitting from paragraph (4) (a) ''or that the dissolution or
        annulment was obtained by fraud'';

   (f)  by inserting in sub-section (5) '', or any legal separation of
the parties to a marriage,'' after ''marriage'';

   (g)  by omitting sub-section (7) and substituting the following
        sub-section:

''(7) For the purposes of this section, a court in Australia, in considering
the validity of a dissolution or annulment of a marriage, or a legal
separation of the parties to a marriage, effected under a law of an overseas
country-

   (a)  where the respondent appeared in the proceedings for the dissolution,
        annulment or separation-

        (i)    is bound by the findings of fact on the basis of which a court
               of the overseas country assumed jurisdiction to grant the
               dissolution, annulment or separation; and

        (ii)   may treat as proved any other facts found by a court of the
               overseas country or otherwise established for the purposes of
               the law of the overseas country; or

   (b)  where the respondent did not appear in the proceedings for the
        dissolution, annulment or separation-may treat as proved any facts
        found by a court of the overseas country or otherwise established for
        the purposes of the law of the overseas country.'';

   (h)  by inserting in sub-section (8) '', or the legal separation of
the parties to a marriage,'' after ''marriage''; and

   (j)  by omitting from sub-section (10) ''and annulments'' and substituting
        '', annulments and legal separations''.