A question we are often asked is whether previous relationships can negatively affect or even prevent approval of partner visa applications.
Not divorced yet? Do not worry
A partner application can be made even if you or your partner (or both) are separated but not officially divorced. You must have lived with your sponsoring partner for 12 months immediately before submitting your application and demonstrate that you have a genuine and lasting relationship.
Couples can register their relationship in many Australian states. This dispenses with the couple’s requirement to demonstrate that they have lived together for 12 months. However, a couple cannot register if a party is married or registered in a relationship with another person.
Living less than 12 months? It is still possible to submit your visa
If you are in Australia and your visa is about to expire and you live together for less than 12 months, you can still submit your Defacto visa while your sponsor is legally married for later registration.
Your partner must be divorced and have registered your new relationship before making your visa decision. The current processing time for an 820 visa is 24 months. So you have quite a bit of time to organize the relationship registration certificate. Registering a relationship is a time to make decisions.
Obviously there is a risk that your partner case will be picked up early by a clerk and you may not have had an opportunity to register your relationship (or you may have dragged your feet!). In this case, your partner visa will be rejected because you did not live together for 12 months when you submitted your application.
You can appeal to the AAT against the decision. This gives you more time to register your relationship. It takes an average of 749 days for the AAT to assess a rejection notice from the partner. You must be able to appeal and pay the AAT fee within 21 days.
If either the sponsor or partner has recently divorced, there is no waiting period before submitting a partner visa as long as other criteria are met.
If an applicant (or sponsor) cannot complete a divorce, the couple must live together for 12 months, either on land or abroad, before submitting the visa.
Is there a limit to the number of sponsored partners?
A sponsor can only sponsor two people in his life.
There must be a five-year break between the date of submission of the first partner application and the date of decision on the second partner visa.
For example, if your partner submitted a partner visa three and a half years ago, you can choose to submit the partner visa now. Since a decision takes about two years, it would have been five years before the second visa was submitted.
The risk lies in an early assignment to a clerk. If this is rejected, the AAT procedure described above applies.
What happens if you were previously sponsored and now want to sponsor someone?
If the sponsor was sponsored by an Australian with a partner visa and was given permanent residence from this relationship, the 5-year limitation also applies to him, even though he has switched from the applicant to the sponsor.
What if you previously started a partner application with someone else?
If you were sponsored by an Australian with an 820, 309 or 300 visa, but the relationship broke down before the PR part of the visa (801 or 100) was issued, you can be sponsored again by another Australian. In this scenario there is no waiting time or time limit.
It is important to note that sponsorship and partner visas must be approved to be among the “two in life”. Declined or withdrawn requests do not count.
This restriction can be waived if there are compelling circumstances. Circumstances must affect the Australian sponsor. This may include the death of a previous partner, a biological child with the new partner, a former spouse who leaves the sponsor, and children who are dependent on the sponsor.
If you acquired Australian PR through another visa route (e.g. a spouse with a 189 specialist visa or a 186 ENS visa), you are not subject to the five-year limitation. You can sponsor a foreign citizen at any time if you meet the requirements.
Children with another partner
If children are included in the application, you must obtain permission from their other birth parent to allow them to migrate, unless you have sole custody of the children and the right to determine when they live. This would take the form of a court order from a family court.
If you are not in touch with your ex-partner and parent of the children, you must prove that you have tried to find and contact them. If they cannot be found, you must apply to the family court in your home country for sole storage. We recommend checking this before you start the visa process.
If you are dependent on a temporary visa such as a 457 or 482 visa and have developed a relationship with an Australia, you may be entitled to a partner visa. It is the responsibility of your ex-partner’s sponsoring company to update immigration related to the breakdown of the relationship.
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