Section 39(3) of the Family Law Act 1975 (Cth) provides alternative citizenship, domicile and ordinary residence connections. One route is ordinary residence in Australia throughout the year immediately before filing. A temporary visa does not itself answer every jurisdiction question. Section 48 requires irretrievable breakdown, demonstrated by at least 12 months of separation immediately before the application, and no reasonable likelihood of reconciliation. Separation under one roof requires supporting evidence; moving bedrooms alone may not establish it.
The Court requires a marriage certificate. If it is not in English, the original and translation must accompany the translator's affidavit. A sole application must be properly served. If your spouse lives in China, obtain advice about the applicable international service procedure and timing. Email or WeChat contact alone should not be assumed to satisfy service requirements.
In Clayton v Bant [2020] HCA 44, the High Court held that the Dubai proceedings did not preclude the Australian property and maintenance claims in that case. The decision shows why the scope of an overseas order matters; it does not guarantee that every foreign divorce leaves Australian financial claims open. For Australian divorce orders, s 44(3) generally imposes a 12 month period after the order takes effect for property and spousal maintenance proceedings, unless leave is obtained. Overseas decrees require separate timing advice.
Prepare your marriage documents, separation chronology, each spouse's location and details of any Chinese proceedings. Ask for advice before choosing where to file, particularly if property or children are in both countries.
Author: Hugh Zhao
Last updated: October 2026
Jurisdiction: Victoria, Australia
Disclaimer: This article provides general information only and does not constitute legal, financial or tax advice. The law may change and its application depends on individual circumstances. You should obtain professional advice before acting on the information contained in this article.