Navigating De Facto Partner Visa Applications During a Divorce Procedure

Amasha

April 25

Are you a separated Australian who has recently found a new partner, but are unsure whether or not you can apply for a partner visa due to the fact that your divorce is not yet finalised? You’ve come to the right place! In this blog post, we will provide all the details needed on how to apply for a partner visa as an individual that is in the process of getting divorced. We know it can be confusing, so our experts have provided an informative guide on what you need to know before making your application.

Should my divorce be final to make a partner visa application?

Are you wondering if you need to wait for your divorce to be final before applying for a partner visa? Good news! As long as you have been in a genuine and continuing de facto relationship with your new partner for at least 12 months, you can submit your application - even if your divorce isn't final yet.

If you're still married to your ex-spouse and want to apply for a partner visa with your new partner, you don't necessarily have to wait for your divorce proceedings to wrap up. Keep in mind that you'll be asked to disclose information about your previous relationship. The Department of Home Affairs may also require evidence of your separation, such as a separation agreement, court orders, or a letter from a legal practitioner.

However, the Department may view you as legally separated if you have genuinely decided to end your marriage and have taken steps to live separate lives, like dividing assets and ceasing to perform regular marital responsibilities. Our team can help you navigate this process and provide support every step of the way.

Can my new partner and I be in a de facto relationship at the time of application?

The answer depends on a range of factors, not having your divorce finalized does not prevent you from making a partner visa with your new de facto partner. However, to be successful in your application you must provide evidence of being in a genuine de facto relationship with your new partner. Being able to show the following evidence would be crucial to the success of the visa

That you have been in a genuine and continuing de facto relationship with your new partner for at least 12 months.
Evidence of shared finances, joint ownership of assets
Evidence of a lease agreement with both of you on the lease or if you own your own home a statement showing that your de facto partner lives with you
Evidence that you are socially known as a couple

Making a partner visa application while still married to your ex-spouse can be tricky, however, if you are able to carefully demonstrate to the department that your new relationship is genuine it is very likely that you will have a successful application. At MJ Legal our lawyers are experts in navigating the legal landscape and can help you with your application.

What if I have children from my previous marriage?

If you have children from a previous marriage, irrespective of whether the divorce is final or not, you will have to provide information about your children in the partner visa application. If your new de facto partner has children and intend to include the Children in the application, they must demonstrate that they have arrangements for the care and welfare of the child and custody rights to have the children granted permanent residency in Australia.

Making your partner visa application!

In summary, you can make a partner visa application with your new partner even if your divorce is not yet final. The Department will require you to provide evidence of the breakdown of the relationship and also evidence of your new de facto relationship. This can make the application very complex and potentially require you to answer several requests for more information from the department of home affairs.

As the law stands today, an unfinalized divorce does not prevent you from making a partner visa application with your new de facto partner. You will only be required to disclose your past relationships, any continuing obligations and your commitment to your new partner in the visa application.