Author: Andrew Robertson
Registered Migration Agent
Keystone Visa and Migrations Services

Abstract:

This case study explores the immigration issues that can affect migrants applying for a partner visa when they are still legally married to another person.

Summary:

Our client was living abroad in a de facto relationship with her partner, an Australia Citizen, for almost 7 years.

This was a committed relationship to the exclusion of all others.

The Australian Citizen was still married to her former partner, however that relationship had ceased.

Our client wanted to apply for a partner visa with her Australian Citizen Partner as her Sponsor.

Background:

The applicant was in a mutually exclusive relationship with the sponsoring partner, and that any relationships they have previously had with other people had ended.

The Sponsor was undergoing divorce proceedings with his previous wife; however, these had not been finalised. The applicant and his previous wife were married in 2007 and separated in 2008.

They had not lived together and have had little contact, other to initiate divorce proceedings and property settlement, since 2008.

Strategy Adopted:

We agreed to lodge a Subclass 309/100 (offshore) partner visa application.

In addition to detailing the requirements to be met:

  • Financial aspects of the relationship
  • Nature of the household
  • Social aspects of the relationship
  • Nature of the commitment

We highlighted the following on our submission that accompanied the application

We referred to the Application for Consent Orders which was filed in the Family Court of Australia and indicates that both parties had initiated the property settlement and confirmed separation.

Further, we noted that final separation was dated as at June 2015 for the purposes of the settlement, however, noted the couple had been separated physically and emotionally since 2008 when the Applicant relocated overseas. This was submitted as evidence of dissolution of the marriage by way of proof that the marriage had ended.

In addition, we referred to the directive that if a delegate is satisfied that a couple has made a reasonable effort to obtain evidence of a divorce or annulment of a marriage but has been unable to, it is open to the delegate to find that s5CB(2)(a)[1] is met if the application is supported by evidence which, on the whole, satisfies the delegate that the couple is in a mutually exclusive relationship.

Moreover, there is nothing in the Act[2] pertaining to the recognition of a de facto relationship that requires parties to divorce in order for the spouse relationship to have ceased, and that they need only be living separately and apart on a permanent basis (which is the case for the Applicant and his ex-partner).

De facto partners[3]

(1)  For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

De facto relationship

For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship with each other but:

(a)  they have a mutual commitment to a shared life to the exclusion of all others; and

(b)  the relationship between them is genuine and continuing; and

(c)  they:

(i)  live together; or

(ii)  do not live separately and apart on a permanent basis; and

(d)  they are not related by family.

Therefore, we argued that the de facto relationship was in existence and that the couple was in a genuine de facto relationship even though the Sponsor was still legally married.

Further, we submitted, he was eligible to Sponsor his partner for the Partner Visa Application.

Conclusion:

The couple received a successful partner visa determination, allowing them to relocate to Australia and live together.

Keystone Visa and Migration Services

Additional information can be obtained by contacting:
Keystone Visa and Migration Service
[email protected]

For all your visa enquiries including questions on the 820 partner visa, speak to our Australian migration agent on +61 468 838 899.


[1] PAM3: Act – Act-defined terms – s5CB – De facto partner
[2] Migration Act (Cth) 1958.
[3] Migration Act (Cth) 1958. s5CB.