A de facto visa while still married?
Married and de facto?
Sometimes in our practice we see clients who are still legally married to someone, yet that relationship has finished and they have not divorced.
They are now in a new relationship with someone else and want to obtain an Australian partner visa.
Their reason for not obtaining a divorce from their former spouse may be an inability to agree on the financial settlement from the divorce. Or, your former husband/wife won’t agree to a divorce; for example.
There could also be legal barriers to getting a divorce in some countries; particularly for women
To qualify for a partner visa in Australia you need to be married to your Australian partner or in a de facto relationship with them.
If you or your Australian partner are still married to someone else, generally you and your Australian partner cannot marry each other. Under Australian law you can’t be married to two different people at the same time.
However under Australian immigration law it is potentially possible to be in a de facto relationship with your partner and have that de facto relationship recognised for migration purposes. This is possible even if you or your partner (or both of you!) are still married to other people.
How?
Well, you must be able to show that the previous marriage has permanently ended and explain why a divorce hasn’t been obtained.
How do you show that the previous marriage has ended?
When a couple who are legally married live separately and apart on a permanent basis, they will potentially not be regarded as spouses for migration purposes – despite not obtaining a divorce.
So, it is open to a party to that marriage to enter into a separate de facto relationship. It can be recognised for migration purposes.
And further, it may sometimes be possible to show that a marriage has ended even if both of the parties to that marriage continue to share a home.
How?
You need to be able to show that although living at the same address:
- the parties have organised their lives separately and do not provide any support or domestic assistance to each other, and
- that other characteristics of a married relationship no longer exist.
Is all of the above easy? Unfortunately not.
Is it possible to have a successful partner visa application in this situation? Potentially it is. That is why this immigration department policy exists.
Obviously all of the above, whilst possible, is complicated. So, feel free to contact us at RPM Lawyers if you need help and advice. Cheers.
This information is correct at the date of publication – June 5th, 2016.
