Did you know that in some instances it’s possible to obtain a Partner visa even after a breakdown of relationship between the visa applicant and the sponsoring partner? In some cases, it’s possible to get a visa even after a divorce. In this article we explain those limited circumstances when a breakdown of relationship does not result in a visa refusal.
The starting point is that you can obtain a partner Visa if you are in a married or de facto relationship with your sponsoring partner. (And of course to sponsoring partner must be an Australian citizen or permanent resident.) After a visa application is submitted, the Immigration Department will first grant a temporary visa and two years later you would be eligible for a permanent visa. When you think about it, this means the relationship between you and your partner must continue to exist for a long period of time. Specifically, you must be in a relationship when you apply for the partner visa, and then at the time when the temporary visa is granted, and finally, at the time when the temporary visa is converted to a permanent visa.
Taking into account current processing times, up to 3 to 4 years can pass between the time you submit your initial partner visa application and the point when the temporary visa is converted to a permanent visa. A lot can happen during this time, and it would be very unfair on visa applicants who have already started developing roots in Australia to refuse them the right to stay just because the relationship with their sponsoring partner has ended.
If there is a relationship breakdown
In some limited circumstances, a partner visa can be obtained even though the relationship between applicant and sponsor has ended.
Scenario 1 – sponsor dies
The first scenario is when the sponsoring partner dies. In this case, if the applicant can satisfy the Immigration Department that the relationship would have continued if the sponsoring partner had not passed away, then the visa can be granted. However, there is an additional requirement that the applicant must prove that they have developed strong cultural, personal or business ties to Australia.
Please note if the sponsoring partner has died, but the Department is satisfied that the relationship would have continued, then it will issue a permanent partner visa straight away instead of first issuing a temporary visa and then making the applicant wait two more years before the visa is converted to a permanent one.
Scenario 2 – family violence
The second scenario is when the relationship breaks down because the applicant or his or her dependent child suffers family violence by the sponsoring partner.
What is family violence?
This term is very broadly defined in the migration regulations, and to use a little bit of legal jargon, it involves actual or threatened conduct which makes the applicant or their child fear for their personal safety.
The family violence provisions are very important because without them, applicants would feel that despite being subjected to violence, they must remain in the relationship to secure an Australian visa. This is obviously a situation which Australian Immigration wants to avoid.
How do you prove that family violence has occurred? Basically, if a court order is already in effect which protects the applicant from violence by the sponsor, or if the sponsor has been convicted for violence, then Immigration will accept that family violence has occurred. Alternatively, if there is no court order, then you must provide a statutory declaration to the Department outlining the details of the family violence suffered. The Department then either accepts this evidence, or they must refer the matter to an independent expert to express an opinion as to whether violence was likely suffered or not. The Department then must accept the expert’s opinion as correct.
If none of the above applies…
The bad news is that if there is a breakdown of relationship outside of the circumstances outlined above, then the visa applicant has very limited options because they will have two find another suitable visa if they want to remain in Australia. For example, it may be that by the time the relationship breaks down, the applicant has strong ties with an Australian employer, and it may be possible to obtain sponsorship from the employer for a temporary or permanent visa.
Want to find out more about partner visas?
Check out our dedicated partner visa page here.
Also, you may wish to read about some other issues in relation to partner visas – as an example, you can read about the character test which applies to partner visa applicants here.
Remember, Australian immigration law is very complex. If you need assistance, please contact us for a confidential consultation.