When it comes to cross-border relationships, property settlements are very complex, in the event of divorce. The case of a Chinese-Australian couple is the perfect example of that. This case was presented to the Family Court last year and its final appeal was submitted by divorce lawyers Klimek & Wijay last month.
This case, known as the Lan & Hao, had an unexpected resolution and the Family court judge, Anne Rees, concluded that all the proceedings must be fulfilled in both Australia and China. The wife, Ms. Lan, owns a property in China, but she wants to solve the property settlement in an Australian Court. On the other hand, the husband, Mr. Hao, is the owner of a house in Australia, but he wants the divorce to be settled in China.
While they were married (2004-2013), they were living separated. Mr. Hao lived in Australia and Ms. Lan in China. However, for a Chinese marriage, this is a very common arrangement. Ms. Lan is a Chinese native and Mr. Hao is a Chinese, born in Australia. Still, they both submitted documents, to stop the property settlement for being resolved in another jurisdiction, than their chosen one.
According to Angie Todd SC, a reputable family lawyer, cross border divorces with this kind of demands, can be solved in only one way. The court from one of the areas, has to stop all the proceedings and determine that party to follow the trial in the other jurisdiction.
On the other hand, the Chinese legislation is very clear. A Chinese court has no jurisdiction, when it comes to settling properties from outside of China. The court could only give a resolution and ask the other spouse to respect it, but it would come more as a recommendation and it cannot be enforced.
The situation is even more complicated than that, and according to Ms. Angie Todd, “this situation can become epic”. Both parties have financial advantages in their own jurisdiction, and they are not willing to settle. Australia has a wider jurisdiction when it comes to cross-settling, as the country is signatory of the Hague convention. Some other Asian countries as Macau or Hong Kong, are signatories of the treaty as well, but China is not one of them.
Considering that, and the fact that China cannot settle any foreign-owned property, the trial is possible to be held in Australia, but nothing is established yet. Even though the long-distance marriage is common in China, it will have a major influence over the final settling, if the trial will be held in Australia.