Partner visas, spouse and prospective spouse visas and a relationship breakdown.
If you are a migrant partner or spouse or you are a sponsoring partner, do you understand what happens or what can happen when a relationship or marriage breaks down before the permanent visa has been granted? What are the rules and what are the options?
Note: advice given here is a very brief summary of complex rules. All circumstances are different and we will require a discussion on yours to give advice that is appropriate.
Generally speaking, if a marriage or relationship breaks down before the permanent visa has been granted there are very few options available for the migrant partner to remain in Australia. However there are important options that the migrant partner should be aware of. These are listed below.
If your marriage or relationship breaks down and you do not intend to continue it then you need to advise the Department of Immigration and Border Protection (DIBP). Once you do this you have no further role in your former spouse or partner’s visa process and you are not entitled to any information about it. Privacy rules prevent any further contact with you by DIBP.
However there are some very important matters that you need to be aware of. The options available for your former partner/spouse are listed below and it is important that you are aware of these. In particular you should be aware of a potential risk to you of a claim of family violence (called domestic violence in other forums). In some cases this will be a claim made only to DIBP and you will never hear about it from them. They will make a decision based on any evidence your former partner/spouse may provide. In real terms there is no impact on your life publicly as the claim is for immigration purposes only and is not used in any other forum.
In other cases there could be a claim in a Court against you of Family Violence. This is a very serious situation and you need urgent legal advice.
There could, of course be follow on effects if your former partner/spouse makes property or other financial claims against you however this is outside immigration law. If you are certain that there is no valid argument that can be made about you committing family violence then there is a good case for providing the Department with information about why the relationship ended. This is permitted however you will not receive any comment or questions back from DIBP, simply an acknowledgement. Note the definition of family violence below and that it does not have to include physical violence. If you are a sponsor and your relationship is ending or ended we recommend that you contact us urgently for advice.
Options available for migrant partners who have not yet got their permanent visa:
1. You can choose to leave Australia and return to your home country.
2.You can apply for a permanent visa earlier than the normal 2 year period on limited grounds. These are:
- when you apply, you have been in a relationship with your partner for not less than three years, or not less than two years if there is a dependent child of your relationship
- your sponsor or de facto partner dies, the relationship would have continued if they had not died, and you have developed close business, cultural or personal ties in Australia
- the relationship breaks down and there is a child of the relationship
- the relationship breaks down due to family violence.
If any of these circumstances occur, you should contact us for advice.
The family stream visas that the family violence provisions are applicable to include:
- Partner (permanent) (subclass 100) visa
- Spouse (permanent) (subclass 100) visa*
- Interdependency (permanent) (subclass 110)*
- Partner (temporary and permanent) (subclasses 820/801) visas
- Spouse (temporary and permanent) (subclasses 820/801) visas*
- Interdependency (temporary and permanent) (subclasses 826/814)*.
- Some applicants for the Prospective Spouse Visa (temporary) (subclass 300).
* These visas have been closed to new applicants from 1 July 2012, existing applicants are covered by family violence provisions.
Relevant family violence is defined as:
‘conduct, whether actual or threatened, towards:
- the alleged victim
- a member of the family unit of the alleged victim
- a member of the family unit of the alleged perpetrator
- the property of the alleged victim
- the property of a member of the family unit of the alleged victim
- the property of a member of the family unit of the alleged perpetrator
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own well being or safety.’Relevant family violence is not limited to physical harm. It may also include other forms of abuse such as psychological and/or financial abuse, which is consistent with the above definition.
The definition applies to both female and male migrant partners.
The process of proving family violence has occurred can be complex, lengthy and very very challenging. It happens at a time when the migrant partner may be in a very difficult state emotionally. A person in this situation needs all the help they can get, emotionally but also to manage the process with immigration. There are several avenues available to migrant partners who believe they have been exposed to family violence. We recommend you call us for advice urgently. Please note we can only act on behalf of one party to the relationship breakdown.
This is a very challenging and sad aspect of migration. We have the experience needed to assist with the immigration aspects and the contacts to help you deal with the emotional and sometimes the financial aspects of the relationship breakdown.