Documents You Need Notarised When Settling a Divorce Across Borders

In a cross-border divorce, you need a notary in Australia mainly when a foreign court wants documents from you: consents, affidavits, acknowledgements or a power of attorney for your lawyer there. If the divorce is in Australia, your overseas spouse signs abroad. Australian court documents can usually go to DFAT without a notary.

Key takeaways

• Which country's court hears the divorce is a legal question. Speak to a family lawyer before either of you files.
• If the divorce is in Australia and your spouse is overseas, your spouse signs where they live, before a witness the Australian court accepts.
• If the divorce is abroad and you are in Australia, you sign that court's documents before a notary here, then DFAT authenticates the notary's signature.
• An Australian divorce order ends the marriage. It does not transfer a house in another country by itself.
• Sealed Australian court documents, including a divorce certificate, can usually go to DFAT directly, without a notary.

When does a divorce cross borders?

A divorce becomes international in three common ways. The spouses live in different countries. The marriage took place overseas. Or there is property, a pension or a bank account in more than one country. Each one adds paperwork, and at several points a signature must be witnessed in a form another country will accept.

This page follows that paperwork in the order it usually unfolds. It shows where an Australian notary fits and, just as often, where the document has to be signed somewhere else. It is not legal advice. In a cross-border divorce, the choice of court can change the result on property and children, so take advice first.

Which country's court should deal with it?

Both spouses may be able to divorce in more than one country. An Australian court can deal with a divorce where either spouse has a sufficient connection to Australia, such as citizenship, domicile or residence. The court's own guidance sets out the eligibility rules and the separation period. The other country may have its own rules and may also have jurisdiction.

The choice matters. Property and maintenance rules differ between countries, and so do the documents each court wants. A family lawyer can tell you whether it matters in your case. Many couples never need to think about it. For others it is the most important decision in the whole process.

What if the divorce is in Australia and your spouse is overseas?

A joint application. If you apply together, your spouse abroad must sign, and some documents may need to be sworn or affirmed. They cannot do this before a notary in Australia, because they are not here. They sign before a person the court accepts in the country where they live. That is commonly a local notary or an Australian consular officer at an embassy or consulate. Check the court's current guidance on overseas witnesses before your spouse books anyone.

A sole application. The application must be served on your spouse. Serving documents in another country follows rules that depend on that country. Some countries require service through a formal treaty channel; others allow local methods. The person who serves the papers usually swears a statement of service where the service happened. Again, that is signed abroad, not before an Australian notary.

Defective service delays everything. Get the court's guidance, or a lawyer's help, before you try to serve anyone overseas. Your notary in Australia has no role in how your spouse is served. See what Australian embassies can witness for the consular side.

What if the divorce is abroad and you are in Australia?

This is where an Australian notary most often comes in. Your spouse may have started proceedings in another country. That court may need documents from you, such as:

• an acknowledgement that you received the papers;
• your consent to the divorce, or to proposed orders;
• a sworn statement or affidavit in response;
• a power of attorney so a lawyer can act for you there.

You sign these in Australia, before a notary. The foreign lawyer or court usually specifies the form and wording, so do not draft your own. The notary checks your identity and that you are signing freely. The notary administers any oath or affirmation and witnesses your signature. The notary does not confirm that what you say in the document is true.

The document then goes to DFAT. If the country is a party to the Hague Apostille Convention, DFAT issues an apostille, a certificate confirming the notary's signature and seal. If it is not, DFAT issues an authentication certificate and the country's embassy then legalises the document. Membership changes, so check the HCCH status table on the day. Our apostille and authentication page explains the DFAT step.

Why does the wording matter so much?

A foreign court applies its own procedure. It may want a particular heading, a statement in the first person, or a specific oath. It may want your signature on every page. A document that reads well in Australian style can still be rejected abroad if it misses the court's formal requirements.

So the order matters:

1. Get the final document from the foreign lawyer, in the court's wording.
2. Read it and ask questions before the appointment, not during it.
3. Get a translation you trust if it is in a language you do not read.
4. Sign before the notary, with your original photo identification.
5. Send it for the DFAT step, then post the original overseas.

A notary must be satisfied you understand what you are signing and may decline if you cannot. See notarising a foreign-language document.

Some foreign courts also want the notary's certificate itself translated. That is a separate job, usually done after the DFAT step. The receiving court decides whose translation it accepts. Our NAATI translation with notary page explains how the two fit together.

How is property in another country dealt with?

An Australian divorce order ends the marriage. It does not divide property. That is done by separate property orders or a financial agreement, often made later and sometimes years apart.

An Australian property order about a house in another country does not, by itself, change who owns that house. Somebody still has to transfer it under the local law. That usually means two things:

• the foreign registry or court recognising the Australian orders, for which it will want sealed copies from the Australian court, authenticated for use abroad; and
• the spouse giving up the property signing a transfer, or a power of attorney for someone to sign it, in the local form.

If that spouse is in Australia, those documents are signed before a notary here and then authenticated. A lawyer in the country where the property sits should draft them. Whether the transfer works under that country's law is a question for that lawyer, not for the notary. Our page on selling property overseas covers the power of attorney chain, which is the same.

Which documents follow which route?

Document	Who signs or issues it	Notary in Australia?
Joint application, spouse overseas	Your spouse, abroad	No, a witness where they live
Statement of service overseas	The person who served, abroad	No
Consent or affidavit for a foreign court	You, in Australia	Yes, then DFAT
Power of attorney for a foreign lawyer	You, in Australia	Yes, then DFAT
Sealed Australian court orders	The Australian court	Usually not; DFAT directly
Foreign divorce document for use here	The foreign court	No; authenticated where issued

What do you need after the divorce?

Once divorced, you may need to prove it abroad. You might want to remarry there, update a foreign civil register, or change a name on a foreign passport. Foreign authorities often ask for a "decree absolute". Australia no longer uses that term. What they need is evidence that the Australian divorce order has taken effect, usually the court's divorce certificate.

That certificate is a court document. DFAT lists court documents, including divorce certificates, among those it can legalise directly. See DFAT's page on documents it can legalise. A notary is needed only if the receiving authority wants a notarised copy rather than the original. Our page on notarising a divorce decree explains the choice.

If your divorce was granted overseas and you want to rely on it in Australia, recognition here is a legal question for a family lawyer. You do not need an Australian notary for it. The foreign divorce document is authenticated, if at all, in the country that issued it. For use here, it is translated by a NAATI-credentialled translator. See documents from overseas for use in Australia.

Where do children fit in?

Parenting arrangements across borders raise separate and sometimes urgent legal questions. They include where a child will live, travel consents and relocation. If a child has been taken to, or kept in, another country without your agreement, contact a family lawyer immediately. Do not wait on paperwork.

For a routine travel consent, a notary witnesses the parent's signature on the consent the destination asks for. See our page on notarising a child travel consent. The receiving authority, such as an airline or a foreign border agency, decides what form it accepts.

Can a Justice of the Peace do this instead?

For an Australian court, often yes. An Australian divorce application may be witnessed by a range of people, and the court's guidance lists them. For a foreign court, usually not. A Justice of the Peace is a volunteer witness for Australian purposes. A JP's signature is not recognised abroad and cannot be apostilled by DFAT. If the document is going overseas, plan on a notary unless the foreign lawyer says otherwise in writing.

Here is an illustration, not a real case

A woman in Perth separated from her husband, who lives in Italy. He files in Italy, where they own an apartment. The Italian lawyer sends her a consent and a power of attorney, both in Italian with English translations. She signs both before a notary in Perth with her passport. DFAT adds an apostille to each, and she posts the originals to Milan. Her Australian superannuation is dealt with separately, under Australian orders, with her own lawyer here.

In short

Work out first which court is hearing the divorce. Your overseas spouse signs Australian court documents where they live. You sign foreign court documents before a notary here, then DFAT authenticates them. Sealed Australian court documents usually go to DFAT directly. Property abroad needs a transfer under local law. See powers of attorney and legal declarations for the notarial side.

People also search for

• Can DFAT apostille an Australian divorce certificate?
• How do I give a power of attorney for use overseas?
• What documents do I need to sell property overseas?
• What is the difference between an affidavit and a statutory declaration?
• Which documents can be apostilled in Australia?

Dealing with a foreign divorce court? Send us the documents you have been asked to sign, and we will explain each step before you book.