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.