There may arise a situation in which a person is legally married to someone else – but separated - and wishing to live permanently with another person. Let’s call that person Ms. A. and her former husband as Mr B. (Since Ms A is legally married to her husband – Mr B - she’s the spouse of her husband).
Let’s agree that Ms. A has been living ‘separately’ and ‘apart’ on ‘permanent basis for quite some time. Now, she finds a partner in Australia – Mr Z - and genuinely wishes to spend her life with that Mr Z. She is in a conundrum, asking herself: ‘Can I apply for an Australian Partner visa if I am married to someone else?’
Well, the answer to this question is not so simple.
Ms. A may be able to apply for an Australian Partner Visa even she is legally married to Mr. B in her home country (or in Australia). But Ms. A cannot marry another person if she is still legally married to Mr. B. She will have to have a formal divorce before she marries Mr. Z.
To find out how is that possible, we need to look at the definition of ‘Spouse’ in section 5F of the Migration Act 1958 (Cth). Section 5F(2) states that:
Two individuals are in a married relationship if:
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
Now we know that Ms. A is not ‘living together’ with Mr. B and that she is ‘living separately and apart on a permanent basis’. She further claims that she is separated from her husband and does not consider her relationship with Mr. B as genuine, continuing and to the exclusion of all others. If that’s her situation, then she is not a spouse in a genuine and continuing married relationship according to the above definition of a ‘spouse’.
So, what that means in simple terms?
In simple terms, a person may enter a de facto relationship even if that person is legally married to someone else but has permanently separated from his/her spouse.
It must be noted that it remains the responsibility of the Partner visa applicant to satisfy the Minister for Home Affairs that the Applicant is no longer in that (former) spousal relationship. The Applicant must put forward a persuasive explanation and provide convincing evidence to show as to why the Applicant is unable to get a formal divorce.
Moreover, an applicant will further have to satisfy all the requirements of a de facto relationship as provided in the Migration Act, Migration Regulations and Departmental policies.
According to section 5CB of the Migration Act - as a de facto partner of another person you must establish that:
· You are not legally married to your de facto partner.
· You both have a mutual commitment to a shared life to the exclusion of all others; and
· The relationship between you and your partner is genuine and continuing; and
· You live together; or you do not live separately on a permanent basis; and
· You are not related by family.
AS for the Australian Partner visas, they are considered complex, expensive, and require a significant amount of supporting evidence and documents. Please click here to learn more about ‘Australian Partner Visas.’
If you need assistance with your Partner visa or Visa cancellation, please feel free to contact Ahmad Legal & Migration Services. You can see the full range of our services on our website.
Warning! Please note that Australian immigration laws and policies are highly complex and dynamic. Therefore, no information provided on this website is comprehensive and intended to be legal advice. Failure to receive professional advice - tailored to your specific circumstances - may prove costly to you in many respects. Please read our Terms and Conditions on our website.