Separated but Not Divorced: Can I Still Apply for an Australian Partner Visa?
For individuals who are in a new relationship while legally separated from a previous marriage, the common question when applying for a Partner Visa, in meeting the visa requirement, can be challenging. The short answer is yes; it is generally possible to apply for a Partner Visa if you have separated but not yet divorced, but it requires strong evidence and explanation.
What are the Partner Visa Requirements?
The Partner Visa (Subclass 820/801 for onshore; Subclass 309/100 for offshore) is granted based on your genuine and continuing relationship with an eligible Australian citizen, permanent resident (PR) or eligible New Zealand citizen. The Department of Home Affairs (DoHA) assess four key pillars of your relationship, which includes financial, household, social and the nature of commitment.
Why “Separated but Not Divorced” is a Key Consideration?
The law generally presumes that a person is legally married until a divorce is finalised. This means that if you are separated but not divorced, you are technically still married to your former partner in the eyes of the law. This doesn’t automatically prevent you from applying for a Partner Visa with your new partner, but it does add layers of complexity. The Department needs to be satisfied that:
Your previous marriage has genuinely ended; in other words, the previous relationship is broken down, and you are living separately and apart from your former spouse on a permanent basis.
Your new relationship is genuine and exclusive. You must prove that your relationship with your new Australian partner is serious and committed.
What Evidence is Required to Prove a Previous Relationship Has Ended?
To prove that your previous relationship has genuinely ended, even without a divorce order, you will need strong evidence, which may include and not limited to:
A formal separation agreement
Separate residences
Separate finances
What Evidence is Required for Your New Relationship for a Partner Visa?
At the same time, you must provide evidence for your new relationship with your partner, covering the four pillars mentioned above. This evidence must clearly show that:
Your relationship is genuine and continuing.
You have a mutual commitment to a shared life.
Related: Living Separately – Does it Affect Your De Facto Claim?
What if I cannot Provide Sufficient Evidence for the Partner Visa?
If you are unable to gather sufficient evidence to prove your previous and new relationships for your Partner Visa, consider seeking expert advice and guidance in this complex area of migration law. An immigration lawyer can assist in assessing your circumstances and advise on how to best demonstrate the genuineness of your new relationship. They can also assist in drafting a legal submission that addresses all legal requirements and potential challenges.
Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling.
Related:
Frequently Asked Questions: Partner Visa (Subclass 820/801 or 309/100)
Tips to Apply for a Partner Visa - Meet the Four Pillars Criteria
Do I Need a Lawyer for PR Stage Partner Visa (Subclass 801/100)?
How Can Agape Henry Crux Assist
Consider speaking with one of our immigration lawyers at Agape Henry Crux for your Partner Visa application. The team works closely with two of our Accredited Specialists in Immigration Law, Jason Ling and Angela De Silva, as they specialise in handling highly complex matters. You can schedule an appointment to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English and Mandarin. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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