In the case of Jasmit & Jasmit [2014] FCCA (12 June 2014) the issue revolved around whether Australia had jurisdiction to hear a divorce application.  The parties’ had been married in India. The wife had returned to India after the parties moved to Australia. The husband filed a divorce application on 9 May 2013 under the Family Law Act 1975.

Judge Riethmuller heard the application that was opposed by the wife who lived in India.  The applicant wife filed a response that the husband’s application be dismissed. She argued at [5] that Australia was a clearly inappropriate forum, that there were outstanding family law proceedings in India, that an Australian divorce would not be recognised in India and at [11] that “she does not have the financial means nor a valid visa to attend the court hearing in Australia”

Judge Riethmuller refused to grant a stay of the husband’s application, stating at [43]

“The husband has a right to a divorce in Australia, without having to prove fault or impairment of the other party, simply on the grounds of irretrievable breakdown of the marriage and separation for a period of 12 months. The evidence in this case shows the parties effectively separated when the wife returned to India.”

Then at [44-45]

“Under s.13 of the Hindu Marriage Act it does not appear that the husband has a prima facie basis to obtain a divorce, and the wife opposes a divorce. Thus, the remedy of divorce appears to be available to the husband only in Australia. As a resident of Australia he is entitled to the benefits and protections of Australian law.

Judge Riethmuller then concluded at [46]-[47]

“Considering the matter as a whole and the unusual circumstances of this case, it appears to me that Australia is not a clearly inappropriate forum in which to allow the divorce application to proceed. In the circumstances, I therefore decline to stay the Husband’s application for a divorce.”

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