NS Legal

Insights

News Centre

home » Wills Are Trending Younger — What to Watch Out for When Making a Will in Australia

Wills Are Trending Younger — What to Watch Out for When Making a Will in Australia

Key points

Can someone who is still married sponsor a new partner for a Partner visa?

In theory, they can sponsor a Subclass 820 Partner visa. However, their documents must satisfy the visa officer that the new relationship is genuine and ongoing, that there are reasonable grounds for not divorcing, and that the marriage has in fact broken down irretrievably.

Published October 2021.

Thinking of migrating to Australia? Aside from skilled migration, investor migration, parent migration and many other pathways, each year a large number of people obtain Australian PR through partner migration.

The more common partner visas include the 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?

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

For example, suppose D is an Australian citizen and M is an Australian citizen. Their marriage exists in name only, but for various reasons they are unable to divorce for the time being. During their separation, D forms a relationship with another person, U, who is not an Australian citizen/PR, and U is in Australia. Can D, while still not divorced, sponsor U for an 820/801 partner visa?

Let’s start with the law. As mentioned 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 become D’s spouse while D is not yet divorced. However, if D is not yet divorced, in Australia D can lawfully hold a marriage and a de facto relationship at the same time. That is to say, 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, applying for a partner visa while the sponsor has not yet divorced is very complex.

1. First, there is usually a need to provide a reasonable explanation of why D and M have not divorced. Some couples’ relationships are completely broken and beyond repair, but because they still have unresolved disputes and have not been able to obtain a divorce order; or some couples do not yet want their children to know they are divorcing and have therefore not obtained a divorce order.

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

  • The two no longer live under the same roof;
  • The two have severed their joint financial affairs;
  • The two have removed each other as insurance beneficiaries;
  • Each has started a new life, 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 couple has obtained a de facto relationship certificate;
  • The couple has a joint bank account;
  • The couple can provide many day-to-day intimate photos together;
  • The couple has joint assets, such as jointly purchased cars or property;
  • The couple lives under the same roof and can provide many items of correspondence showing the same address;
  • The couple has witnesses, such as friends or family, who can attest to the relationship;
  • One party has named the other as their insurance beneficiary, etc.;
  • If renting, both parties appear together on the lease agreement;
  • The couple can provide persuasive relationship statements, etc.

Of course, in theory there is no legal restriction preventing D from sponsoring U for an 820 partner visa; however, as with all partner visas, the materials from D and U must satisfy the case officer that their relationship is genuine and ongoing. On the other hand, U and D must also overcome additional hurdles to satisfy the immigration officer that there is a reasonable reason why D has not divorced, and that although D and M are not yet divorced, 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.

Questions and answers

What evidence can establish a genuine de facto relationship with a new partner?

Common evidence includes a de facto relationship certificate, a joint bank account, everyday photographs together as a couple, jointly owned assets, living together with correspondence at the same address, friends and family as witnesses, insurance beneficiary arrangements and relationship statements. If renting, it also includes a lease naming both partners.

Related Articles

Have a Legal Question?

Contact us and we will help you assess your situation.

Contact Us