One question we’re asked a lot is whether previous relationships can have a negative impact – or even prevent – partner visa applications from being approved.
Not yet divorced? Don’t worry
A partner application can be lodged even if you or your partner (or both) are separated but not officially divorced. You must have lived with your sponsoring partner for the 12 months immediately prior to lodging your application and demonstrate that you’re in a genuine and ongoing relationship.
Many Australian states allow couples to register their relationship. This waives the requirement of the couple showing that they have lived together for 12 months. However, a couple cannot register if either party is married or is registered in a relationship with someone else.
Less than 12 months cohabitation? It’s still possible to lodge your visa
If you are in Australia and your visa is about to expire, and you have less than 12 months cohabitation, you can still lodge your defacto visa while your sponsor is legally married, with a view to registration at a later stage.
Your partner must be divorced and must have your new relationship registered before the decision is made on your visa. The current processing time for an 820 visa is 24 months, so you have a fairly long time to organise the relationship registration certificate. Relationship registration is a time of decision requirement.
Obviously, the risk you face is that your partner case could be picked up early by a Case Officer, and you have not had the opportunity to register your relationship (or you have dragged your feet!). In this case, your partner visa would be refused as you did not have the 12 months of living together when you lodged the application.
You could appeal the decision with the AAT. This gives you further time to register your relationship. It takes on average 749 days for the AAT to assess a partner refusal appeal. You will need to be able to lodge the appeal within 21 days and pay the AAT fee.
If either the sponsor or the partner is only recently divorced, there is no waiting period prior to lodging a partner visa, as long as other criteria is met.
If an applicant (or the sponsor) is unable to finalise a divorce, the couple must live together for 12 months prior to visa lodgement, either onshore or offshore.
Is there a limit on how many partners can be sponsored?
A sponsor can only sponsor two people in their lifetime.
There must be a five-year gap between the date the first partner application was lodged and the date that the second partner visa is decided.
For example, if your partner lodged a partner visa three and a half years ago, you may decide to lodge the partner visa now. Given that it takes approximately two years for a decision, the five years would have passed by the time the second visa is lodged.
The risk is an early allocation to a Case Officer. If refused, the AAT process above would apply.
What happens if you were previously sponsored and now you want to sponsor someone?
If the sponsor was themselves sponsored on a partner visa by an Australian and obtained permanent residency from this relationship, they also face the 5-year limitation, even though they have changed from being the applicant to being the sponsor.
What if you started a partner application previously with someone else?
If you were sponsored on a 820, 309 or 300 visa by an Australian but the relationship broke down before the PR part of the visa (801 or 100) was granted, you can be sponsored again by another Australian. There is no waiting period or time limitation in this scenario.
It is important to note the sponsorship and partner visas must be approved to count in the “two in a lifetime”. Refused or withdrawn applications do not count.
This limitation can be waived if there are compelling circumstances. The circumstances must impact the Australian sponsor. This may include the death of a previous partner, a shared biological child with the new partner, a previous spouse abandoning the sponsor and children being dependent on the sponsor.
If you gained Australian PR through another visa pathway (such as a spouse on a 189 skilled visa or on a 186 ENS visa), you are not subject to the five year limitation. You can sponsor an overseas national at any time, provided you meet the requirements.
Children with another partner
If children are being included in the application, you must obtain permission from their other biological parent for them to migrate unless you have sole custody of the children and the right to determine when they live. This would be in the form of a court order from a family court.
If you have no contact with your ex-partner and parent of the children, you will need to demonstrate that you have attempted to find and contact them. If they cannot be located, you would need to seek a sole custody document order from the family court in your home country. We recommend looking into this before you start the visa process.
If you are a dependent on a temporary visa such as a 457 or a 482 visa and formed a relationship with an Australia, you may be eligible for a partner visa. The onus is on your ex-partner’s sponsoring company to update Immigration regarding the relationship breakdown.