Thinking about migrating to Australia? In addition to skilled migration, investment migration, parent migration and many other pathways, a large number of people each year obtain Australian PR through partner migration.

Common partner visas include the subclass 820/801 and 309/100. Partner migration requires the sponsor and the applicant to be in a married relationship or a de facto relationship.

What If the Sponsor Is Not Yet Divorced?

Here is the question: if, for various reasons, the sponsor is not yet divorced, can they sponsor a third party for a partner visa?

For example, suppose D is an Australian citizen and M is an Australian citizen. Their marriage has broken down in substance, but for various reasons the two are unable to divorce for the time being. During the separation, D enters into a relationship with another person, U, who is not an Australian citizen or PR and is located inside Australia. The question is: while D is not yet divorced, can D sponsor U for an 820/801 partner visa?

We need to begin with the law. As noted above, if U wants to obtain a partner visa, U must first prove that U and D are in a married or de facto relationship. Because Australia generally does not recognise two concurrent marriages, U cannot lawfully marry D while D is not yet divorced. However, while D remains married, Australia does allow D to lawfully hold one marriage and one de facto relationship at the same time. In other words, in theory, even if D is not yet divorced, D and U can still establish a de facto relationship concurrently.

Obstacles to the Partner Visa

Of course, lodging a partner visa where the sponsor is not yet divorced is highly complex.

1. First, there generally needs to be a reasonable explanation for why D and M have not divorced. Some couples’ relationships have completely and irretrievably broken down, yet they have not obtained a divorce order because of unresolved disputes between them, or because they do not yet want their children to know that they are divorcing.

2. Second, evidence is required to show that the relationship between D and M has broken down completely and irretrievably. Typical evidence includes:

• the two parties no longer live under the same roof;
• the two parties have severed their joint financial dealings;
• the two parties have removed each other as insurance beneficiaries;
• each party has started a new life separately, etc.

3. Third, evidence is required to prove that the relationship between D and U is a genuine de facto relationship. Typical relationship evidence includes:

• the two parties have registered their de facto relationship;
• the two parties have a joint bank account;
• the two parties can provide numerous everyday intimate photos together;
• the two parties have shared assets, such as jointly purchased cars or property;
• the two parties live under the same roof and can provide extensive correspondence addressed to the same residence;
• the two parties have witnesses, such as friends or family members, who can attest to their relationship;
• one party has named the other as their insurance beneficiary, etc.;
• if renting, both parties appear jointly on the tenancy agreement;
• the two parties can provide compelling relationship statements.

Of course, in theory there is no legal restriction preventing D from sponsoring U for the subclass 820 partner visa. But as with any partner visa, D and U’s evidence must persuade the case officer that their relationship is genuine and continuing. On the other hand, U and D must also overcome additional hurdles to convince the case officer that there are reasonable grounds why D has not yet divorced, and that although D and M remain legally married, the marriage has in fact reached a point of no return.

Final Thoughts

Can a sponsor who is not yet divorced sponsor a third party for a partner visa? Given the complexity of such cases, if you have related questions please consult a professional.