RPM Immigration Lawyers

You can be granted a partner visa either because you are married to your Australian partner, or, because you are in a de facto relationship with them.

The question sometimes arises that if you are applying for a partner visa because you are married to an Australian, does your marriage need to have taken place at the time you lodge your application for the partner visa?

Like most things in immigration law, the answer is – it depends!

The answer depends upon whether you are applying for a partner visa:

• from within Australia (onshore subclass 820/801), or,
• from outside Australia (offshore subclass 309/100).

If you are applying onshore because you are married to an Australian then yes your marriage needs to have taken place at the time you lodge your partner visa application.

But, if you are applying offshore then you can lodge your application for the partner visa before you have actually married your Australian partner.

You must though marry within the normal processing period (time from application to decision) for the offshore partner visa.  On average, this is approximately 12 months.

Why is this of interest anyway?

Well, you may be getting married but you can’t get married right now.  That could be for a number of reasons. A common reason we see is that because you or your partner is still married to someone else.

For example, a person in Australia can’t get divorced until after they have been separated from their former partner for 12 months.

So if you are outside Australia and marrying your Australian partner in, say, 9 months time then you can potentially lodge your offshore partner visa application now.  You then get into the processing queue now and get your offshore partner visa issued much earlier than you otherwise would. Excellent!

However – and there’s always a however – their is a risk. It is that you lodge your partner visa application before your intended marriage and pay the government’s $6,865 visa application charge at the time you apply for the visa. Then, for whatever reason, your marriage doesn’t go ahead or doesn’t go ahead within the 12 month average processing time for the visa.

Unfortunately, you won’t be granted the visa. And, you almost certainly won’t get a refund of the visa application charge you have paid.

However, for those that can’t marry now, but are certain of their marriage plans, this is a strategy that is well worth keeping in mind.  Cheers.

Married and de facto?

Sometimes in our practice we see clients who are still legally married to someone, yet that relationship has finished and they have not divorced.

They are now in a new relationship with someone else and want to obtain an Australian partner visa.

Their reason for not obtaining a divorce from their former spouse may be an inability to agree on the financial settlement from the divorce. Or, your former husband/wife won’t agree to a divorce; for example.

There could also be legal barriers to getting a divorce in some countries; particularly for women

To qualify for a partner visa in Australia you need to be married to your Australian partner or in a de facto relationship with them.

If you or your Australian partner are still married to someone else, generally you and your Australian partner cannot marry each other. Under Australian law you can’t be married to two different people at the same time.

However under Australian immigration law it is potentially possible to be in a de facto relationship with your partner and have that de facto relationship recognised for migration purposes. This is possible even if you or your partner (or both of you!) are still married to other people.

How?

Well, you must be able to show that the previous marriage has permanently ended and explain why a divorce hasn’t been obtained.

How do you show that the previous marriage has ended?

When a couple who are legally married live separately and apart on a permanent basis, they will potentially not be regarded as spouses for migration purposes – despite not obtaining a divorce.

So, it is open to a party to that marriage to enter into a separate de facto relationship. It can be recognised for migration purposes.

And further, it may sometimes be possible to show that a marriage has ended even if both of the parties to that marriage continue to share a home.

How?

You need to be able to show that although living at the same address:

• the parties have organised their lives separately and do not provide any support or domestic assistance to each other, and
• that other characteristics of a married relationship no longer exist.

Is all of the above easy? Unfortunately not.

Is it possible to have a successful partner visa application in this situation? Potentially it is. That is why this immigration department policy exists.

Obviously all of the above, whilst possible, is complicated.  So, feel free to contact us at RPM Lawyers if you need help and advice. Cheers.

This information is correct at the date of publication – June 5th, 2016.

Ross McDougall  Immigration Lawyer

Your social media posts and your online presence can benefit your partner visa application. But, they can also potentially create problems.

When providing evidence for partner visa applications we often use extracts from our clients’ online posts.

Posts from Facebook, Instagram and other sites can be useful. Your social media posts can help to show the history and the genuine nature of your relationship.

However, beware! Immigration Department Case Officers regularly check a partner visa applicant’s and their sponsor’s posts on social media.

Often, they will look at your recent posts and posts from years ago.

Everything on  your social media accounts should support your partner visa application.  If not, you may get a ‘please explain’ letter from the Case Officer during the processing of your visa application.

Anything on your social media accounts that conflicts with what you have said in your partner visa application can lead to a refusal.

So, it’s a good idea to check your accounts thoroughly. Make sure that everything there supports your partner visa application.

Innocent old posts can sometimes be misunderstood by Case officers – it’s easy to make sure that this doesn’t happen to you – now that you know about it.

Feel free to Contact me if you have any questions about this or if you have received a ‘please explain’ letter from the Immigration department – it may not be too late to save your application.

Take care out there!  Cheers. Ross.