Partner Visa While Married to Someone Else

A partner visa while still married to someone else is possible, but the new couple cannot rely on a marriage between them. If either partner is still legally married to a former spouse, any later marriage between the new partners is void under Australian law. The application for a partner visa while still married must instead be made on the basis of a de facto relationship.

This is one of the most misunderstood areas of partner visa law. Many couples believe that a religious ceremony, a marriage in their home country or a signed marriage certificate makes them spouses. It does not, if one of them had not yet finished the earlier marriage. Many others believe that they must wait for a divorce before they can apply at all. That is also wrong. The law allows a person who is still married on paper to be in a genuine de facto relationship with someone else, provided the old marriage has ended in every practical sense.

This guide explains how a partner visa while still married is assessed by the Department of Home Affairs and the Administrative Review Tribunal. It covers why the new partner cannot be a spouse, how the de facto route works, what counts as separation, how divorce timing works under the Family Law Act 1975, the bigamy risk, the evidence a case officer expects and how to choose the right time to apply. It does not cover in detail how to declare earlier relationships on the application forms, and it does not cover whether a foreign marriage is recognised in Australia in general. For the general evidence that proves a genuine relationship, see our guide to partner visa relationship evidence.

Can you apply for a partner visa while still married to someone else?

Yes. A person can apply for a partner visa while still married to someone else, but the application must be made on the basis that the couple are de facto partners, not spouses. The Migration Act 1958 recognises two kinds of partner relationship: a married relationship under section 5F and a de facto relationship under section 5CB. A partner visa while still married can only succeed through the second of these.

The reason is simple. Section 5F requires the couple to be married to each other under a marriage that is valid for the purposes of the Migration Act. A marriage is not valid if one party was already married to someone else on the day of the ceremony. So the spouse category is closed to the new couple until the earlier marriage is legally dissolved and they marry again.

The de facto category is different. Section 5CB says a couple cannot be de facto partners if they are married to each other. It does not say that neither of them may be married to someone else. The Department's own policy confirms that section 5CB can be met even where one or both partners are still married to a third person, provided the decision maker is satisfied that the relationship with the earlier spouse has ended, even if the marriage itself has not.

That distinction is the key to every partner visa while still married case. The question is not whether the divorce paperwork is complete. The question is whether the earlier relationship is over and the new relationship is a genuine, continuing and exclusive shared life.

This applies to every partner visa subclass. It applies to the onshore Subclass 820 partner visa and the permanent Subclass 801, and it applies to the offshore Subclass 309 partner visa and the permanent Subclass 100. For an overview of how these subclasses fit together, see our complete guide to partner visas in Australia, and our explainer on the Subclass 820 onshore partner visa sets out the onshore structure.

Why the new partner cannot be your spouse

The new partner cannot be a spouse for migration purposes because a marriage entered into while either party is still married to someone else is void. A void marriage is treated as if it never legally existed. It is not merely defective or irregular. It has no legal effect at all as a marriage.

Section 23B of the Marriage Act and void marriages

Section 23B of the Marriage Act 1961 sets out the grounds on which a marriage is void. One of those grounds is that, at the time of the marriage, either party was lawfully married to some other person. Section 12 of the Migration Act ties the validity of a marriage for visa purposes to the Marriage Act. The result is that a marriage which is void under the Marriage Act cannot satisfy the spouse definition in section 5F.

The same rule applies to marriages that took place overseas. Part VA of the Marriage Act deals with the recognition of foreign marriages, and a foreign marriage is not recognised in Australia if either party was already married to someone else when it was solemnised. It does not matter that the marriage was lawful in the country where it took place. It does not matter that the local authorities issued a marriage certificate. If the earlier marriage was still on foot, the later marriage is not recognised in Australia, and a partner visa while still married cannot be based on it.

The Department's policy also deals with polygamous marriages. Where a person has more than one concurrent marriage, only the first marriage is capable of being recognised as a valid marriage under the Migration Act, and only if the other relationships have ended. A later marriage is never recognised as a spousal relationship for a partner visa while the first marriage continues.

Ending the first marriage later does not fix the second marriage

A void marriage does not become valid when the earlier marriage ends. This is the point that catches many couples. They marry in their home country while one of them is waiting for a divorce. A few months later the divorce is finalised. They assume their marriage is now valid. It is not.

The Department's policy states this directly. A second marriage that took place before the first marriage ended is not a valid marriage under the Migration Act, and the later ending of the first marriage, whether by divorce, permanent separation or death, does not change that. The parties to the second marriage can still meet the de facto definition, provided theirs is the only ongoing partner relationship.

In practical terms, a couple in this position has two choices. They can apply as de facto partners and rely on the shared life they have built. Or, once the divorce has taken effect, they can marry again in a ceremony that is legally valid, and then rely on that new marriage. A partner visa while still married that is lodged on the strength of the first, void marriage certificate will be assessed as a spousal application that cannot succeed on that basis.

This is not a technicality. A case officer who sees a marriage certificate dated before a divorce certificate will usually notice the problem immediately. The most common reasons partner visas are refused often come down to a relationship being presented in the wrong legal category, and this is a clear example.

What a "spouse" means for a partner visa while still married

A spouse is a person in a married relationship that meets every part of section 5F of the Migration Act. For a partner visa while still married to someone else, the definition matters because it explains exactly why the new couple fall outside it.

Section 5F requires four things. The couple must be married to each other under a marriage that is valid for the purposes of the Migration Act. They must have a mutual commitment to a shared life as a married couple to the exclusion of all others. The relationship must be genuine and continuing. They must live together, or not live separately and apart on a permanent basis. Regulation 1.15A of the Migration Regulations 1994 then sets out the four aspects a decision maker considers in deciding whether a married relationship is genuine: the financial aspects, the nature of the household, the social aspects and the nature of the commitment. Our complete guide to the Subclass 820 partner visa explains how these criteria are applied at the temporary stage, and our comparison of Subclass 820 and Subclass 801 explains how they are tested again at the permanent stage.

The person who is still married to a former spouse is, technically, still that former spouse's spouse in name. But section 5F also says that no spousal relationship exists where the parties are living separately and apart on a permanent basis. So a person who is married on paper but permanently separated is not in a continuing spousal relationship with the former spouse for migration purposes. That is why the earlier marriage does not block the new relationship altogether. It only blocks the new couple from being treated as married.

One further consequence is worth knowing. The Department's policy says that where an applicant is legally married but permanently separated, the former spouse is not a member of the applicant's family unit. The former spouse is therefore not assessed against the health and character criteria as part of the application. A partner visa while still married does not drag the former spouse into the process, provided the separation is genuine and permanent.

The de facto route for a partner visa while still married

The de facto route is the legal pathway for a partner visa while still married to someone else. Section 5CB of the Migration Act defines a de facto relationship. The couple must not be married to each other. They must have a mutual commitment to a shared life to the exclusion of all others. The relationship must be genuine and continuing. They must live together, or not live separately and apart on a permanent basis. They must not be related by family.

Regulation 1.09A of the Migration Regulations then requires the decision maker to consider the same four aspects that apply to married couples: the financial aspects, the nature of the household, the social aspects and the nature of the commitment. Our guide to the de facto partner visa and the 12-month rule explains the general de facto requirements in detail. The same rules apply to same-sex couples, as our page on LGBTI and same-sex partner visas explains.

For a partner visa while still married, the critical words are "to the exclusion of all others". The Department's policy says that if either partner has an ongoing spouse or de facto relationship with another person, the claimed relationship is not a de facto relationship. The onus is on the applicant to satisfy the decision maker that the new relationship is mutually exclusive and that any relationship with other people has ended.

The policy also says that it should not be assumed that a relationship is not exclusive merely because one or both partners are still married to a third person. The decision maker must look at the evidence as a whole. A legal marriage certificate from an earlier relationship is not, on its own, proof that the earlier relationship continues.

This is where a well-prepared partner visa while still married application differs from a weak one. A weak application leaves the earlier marriage unexplained. A strong one sets out, with evidence, when and how the earlier relationship ended, what steps have been taken to dissolve it, and how the new relationship has been exclusive since it began.

When the 12-month rule applies

De facto applicants must generally show that the de facto relationship existed for at least 12 months immediately before the application was made. That requirement does not apply if the relationship is registered under a law of an Australian state or territory, or if there are compelling and compassionate circumstances for granting the visa. For a partner visa while still married, the 12 months can only be counted from the time the new relationship became exclusive, which cannot be earlier than the end of the earlier marriage relationship in fact. Relationship registration may not be available to a person who is still married, because state and territory registration laws generally require that neither party is married. Our detailed article on whether you really need 12 months of de facto relationship for a Subclass 820 explains the exceptions, and the 820 visa requirements and documents guide explains where the requirement sits among the other criteria.

When does the earlier marriage "end" for migration purposes?

For migration purposes, an earlier marriage relationship ends when the parties separate permanently, even if the legal marriage has not yet been dissolved. The Department's policy describes separation as occurring where either party forms the intention that the relationship is at an end and acts on that intention in a way that is inconsistent with the relationship continuing.

This matters enormously for a partner visa while still married. The relevant date is not the date of the divorce order. It is the date the earlier relationship ended in fact. A divorce certificate is useful evidence, but it is not the only evidence, and it usually confirms a separation that happened much earlier.

Separation does not need both parties to agree. The Family Law Act recognises that a marriage can end through the action or conduct of only one of the parties. A person whose former spouse refused to accept the separation, or who left a relationship without the other person's consent, can still be separated in law.

The Department generally expects the separation to be permanent. A short break, a cooling-off period or a separation for work does not on its own end a marriage. Physical distance is not the same as legal separation. A couple who live in different cities because of employment may still be in a continuing marriage. What matters is whether the marriage relationship, as a shared life, has come to an end.

Separation under one roof

Separation under one roof means that a married couple have separated even though they continue to live at the same address. Section 49 of the Family Law Act allows this, and the Department's policy accepts it. A partner visa while still married to someone who still lives in the same house is therefore not automatically fatal, but it requires careful evidence.

The policy says that couples who are separated under one roof need to show that they have organised their lives separately and that the links and associations of a married relationship have stopped. Evidence might include separate bedrooms, separate finances, separate meals and social lives, statements from family members or friends who know the arrangement, and a clear explanation of why the parties remained at the same address. Common reasons include financial hardship, the care of children, cultural or family pressure, or waiting for a property sale.

A case officer will look at this evidence closely, because it overlaps directly with the claim that the new relationship is exclusive. If an applicant says they were living with their former spouse while also beginning a new relationship, the decision maker will want to understand how both claims can be true at once. This is one of the more delicate areas in a partner visa while still married case and should be explained honestly and precisely. The same separation principles are applied when a current partner relationship ends during processing, as our article on what happens to a Subclass 820 application if the relationship breaks down explains.

Najem [2026] ARTA 575 and what the Tribunal decided

Najem (Migration) [2026] ARTA 575 is a recent Administrative Review Tribunal decision on a partner visa while still married situation. The matter concerned a Subclass 309 application. As reported, the couple married in their home country before the divorce of the sponsor's first marriage had been finalised. The relationship was therefore assessed as a de facto relationship, and the Tribunal considered whether it was genuine and continuing, including the nature of the commitment. The Tribunal remitted the matter to the Department for reconsideration.

The case illustrates the central point of this article. The couple's marriage could not be relied on, because it took place while the sponsor was still married to someone else. But the relationship itself was not ignored. It was assessed as a de facto relationship on the evidence, and the matter was remitted on that basis.

Earlier decisions in the Tribunal's predecessor, the Administrative Appeals Tribunal, follow the same approach. As reported:

• In Kaur (Migration) [2020] AATA 5262, a Subclass 309 matter, the parties married while the sponsor was awaiting a divorce. The issues were whether the applicant was in a de facto relationship with the sponsor and whether the relationship was genuine and continuing, with a child of the relationship. The matter was remitted.
• In Kaur (Migration) [2018] AATA 5062, also a Subclass 309 matter, the relationship began before the parties' earlier divorces and the issue included whether there had been a de facto relationship for 12 months. The matter was remitted.
• In 1706602 (Migration) [2019] AATA 5299, a Subclass 309 matter, the issues included the status of the applicant's previous marriage and whether the marriage with the sponsor was solemnised and recognised as valid under local law. The matter was remitted.

These decisions do not mean that every partner visa while still married case will succeed. Each Tribunal decision depends on its own facts and evidence. What they show is that a marriage that cannot be relied on is not the end of the case, provided the relationship evidence supports a genuine de facto relationship. Our guide to ART review and what to expect after a visa refusal explains how the Tribunal reviews partner visa refusals, and our visa refusals service and guide to when you need a visa appeal lawyer explain the help available at that stage. For a partner visa while still married, the lesson from these cases is that the legal category of the relationship must be identified correctly from the start.

Evidence of separation for a partner visa while still married

The evidence for a partner visa while still married must prove two things at once: that the earlier marriage relationship has ended, and that the new relationship is genuine, continuing and exclusive. Most applications prove the second point reasonably well. Many fail to prove the first.

Evidence that the earlier relationship has ended

Evidence that the earlier marriage relationship has ended commonly includes:

• Divorce documents. A divorce application that has been filed, a hearing date, a divorce order or a divorce certificate. Even an application that has only been filed shows a clear intention to end the marriage.
• Separation date evidence. Documents that show when the separation happened, such as a new lease, a change of address, a moving receipt or utility accounts in one name.
• Separate finances. Evidence that joint accounts were closed or that each party now manages money separately.
• Property and parenting arrangements. Correspondence, agreements or court documents about property division or the care of children.
• Statements from people who know. Form 888 statements from family members or friends who know the earlier marriage has ended and can describe how they know it.
• An explanation of any delay. If the divorce has not been finalised, a clear account of why. That may be a legal waiting period, cost, the former spouse's location, or the law of another country.

The Department's policy says that where a delegate has reason to believe either party may still have an ongoing relationship with a former partner, the delegate should ask for more evidence. Where there is a common child and shared parenting, the policy accepts that regular communication with the former partner is likely and does not in itself suggest the earlier relationship continues. That is helpful for parents, but the nature of the contact should still be explained.

Evidence that the new relationship is exclusive

Evidence that the new relationship is exclusive is assessed under the four aspects in regulation 1.09A. For a partner visa while still married, the timeline matters more than usual. The case officer will compare the date the earlier relationship ended with the date the new relationship began and the date the couple say it became committed and exclusive.

Strong evidence often includes joint leases or property, shared bills, joint accounts, travel together, joint invitations and social recognition, and documents that show the couple presenting themselves to others as partners. Our partner visa document checklist and the guide to preparing evidence of a genuine relationship set out the usual categories.

The couple's relationship statement is the place to explain the history in their own words. In a partner visa while still married application, that statement should address the earlier marriage directly. It should explain when the earlier relationship ended, when and how the new relationship began, and why the divorce has not yet been completed, if that is the case. The statement is the applicant's and the sponsor's own evidence. It should be accurate, consistent with the documents, and reviewed carefully by them before it is lodged.

Consistency is critical. If the relationship statement gives one separation date, the forms give another, and a Form 888 statement gives a third, the case officer is likely to doubt all of them. A partner visa while still married case lives or dies on a credible, consistent timeline.

When the sponsor is the one still married

The rules are the same when the Australian sponsor, rather than the applicant, is still married to someone else. Najem [2026] ARTA 575 is an example of a sponsor whose first divorce had not been finalised at the time of the second marriage. The new marriage could not be relied on, and the relationship was assessed as de facto.

A partner visa while still married situation involving the sponsor can raise additional questions. The sponsor may have previously sponsored the earlier spouse for a partner visa. If so, the sponsorship limitations may be relevant. These rules restrict how many partners a person can sponsor and how soon after an earlier sponsorship they can sponsor again. Our pages on partner visa sponsorship limitations and when a sponsor cannot sponsor a partner visa explain those rules.

The sponsor's evidence of separation is just as important as the applicant's. A sponsor who is still living with, still financially linked to, or still publicly presented as the spouse of an earlier partner will find it difficult to show that the new relationship is exclusive. The same categories of evidence apply: divorce documents, separation date evidence, separate finances and statements from people who know.

Getting a divorce in Australia: timing and the 12-month separation rule

In Australia, a marriage can only be legally ended by a divorce order under the Family Law Act 1975. The only ground for divorce is that the marriage has broken down irretrievably, and that ground is established by showing that the parties have separated and have lived separately and apart for a continuous period of at least 12 months immediately before the application for divorce is filed.

This timing rule is central to a partner visa while still married. A person who separated recently cannot file for divorce in Australia until 12 months of separation have passed. In the meantime, they may already be in a new, serious relationship. That is exactly the situation in which the de facto route matters.

Some further points about Australian divorce timing are relevant:

• Separation under one roof can count. Time spent separated while living at the same address can count towards the 12 months, but it must be proved, usually with additional evidence.
• A brief reconciliation does not always restart the clock. The Family Law Act allows a single period of resumed cohabitation of up to three months without breaking the continuity of separation, although that period itself does not count towards the 12 months.
• Short marriages have an extra step. Where the marriage has lasted less than two years, the parties generally need to attend counselling, or obtain the court's permission, before a divorce application can be heard.
• Children must be considered. Where there are children of the marriage under 18, the court must be satisfied that proper arrangements have been made for them before the divorce order takes effect.
• The order does not take effect immediately. A divorce order generally takes effect one month and one day after it is made. A person is still married until that date.

That last point is critical. The divorce is not final on the day of the hearing. A couple who marry in the month after the hearing but before the divorce takes effect are entering a void marriage, with all the consequences explained earlier in this article.

An Australian court can generally hear a divorce application if either party is an Australian citizen, is domiciled in Australia, or ordinarily lives in Australia and has done so for the year before filing. This allows many people with a former spouse overseas to divorce in Australia rather than in their country of origin.

Overseas divorces and religious divorces

An overseas divorce is generally recognised in Australia if it was effective under the law of the country where it was obtained and at least one party had a sufficient connection with that country when the proceedings began, such as domicile, residence or nationality. Section 104 of the Family Law Act sets out the circumstances in which an overseas divorce is recognised.

Two situations cause difficulty in a partner visa while still married case. The first is where a person travelled to another country for a short visit only to obtain a divorce. The second is where the divorce was obtained only through a religious or customary process, without any civil divorce. The Department's policy identifies both as common sources of doubt about whether a foreign divorce is valid.

A religious divorce alone may not end the marriage in law if the marriage was also a civil marriage, or if the law of the relevant country requires a civil step. If the validity of an overseas divorce is uncertain, the safe course is to obtain legal advice before relying on it, and before entering any new marriage. Couples should not assume that a religious divorce in one country allows them to marry again in Australia or anywhere else.

What if a divorce is not possible?

Some people cannot obtain a divorce, or cannot obtain one quickly. The law of the country where they married may make divorce very difficult. The former spouse may be missing, may refuse to cooperate, or may live in a place where court processes are unavailable. Cost, safety or family pressure may also be real obstacles.

The Department's policy recognises this. It says that where a decision maker is satisfied that a couple have made a reasonable effort to obtain a divorce or annulment but have been unable to do so, it is open to the decision maker to find that the exclusivity requirement is met, if the evidence as a whole shows a mutually exclusive relationship. So a partner visa while still married does not require a completed divorce in every case.

The important words are "reasonable effort". An applicant who has made no attempt at all to end the earlier marriage will find it harder to persuade a case officer that the earlier relationship is truly over. An applicant who can show steps taken, such as legal advice obtained, applications filed, court correspondence, or evidence of the barriers in the other country, is in a much stronger position.

For some applicants, an Australian divorce may be available even where a divorce in the country of marriage is difficult. Whether that is possible depends on the jurisdiction rules described above, and should be checked early. A partner visa while still married that relies on the reasonable effort principle needs careful preparation, and our guide on when you need an immigration lawyer for a partner visa explains why legal advice is particularly useful in matters like this. Our overview of the role of a partner visa lawyer in Australia explains what that advice usually covers.

Bigamy risk: marrying again before the divorce is final

Marrying again before the earlier marriage has been dissolved can be a criminal offence. Section 94 of the Marriage Act 1961 makes it an offence for a married person to go through a form or ceremony of marriage with another person. There are limited defences, including in some circumstances a reasonable belief that the earlier marriage had already ended. Whether a ceremony that took place overseas is caught by Australian criminal law is a separate legal question that depends on the facts.

For a partner visa while still married, the bigamy issue has three practical consequences.

First, a couple must not go through a marriage ceremony in Australia while either of them is still married. That includes the period after the divorce hearing and before the divorce order takes effect. Celebrants require evidence that any earlier marriage has ended before they can solemnise a marriage, and each party must declare their conjugal status. Signing a false declaration creates further legal problems.

Second, a void marriage may raise character and credibility issues in the visa application. A case officer who sees that a ceremony was performed while one party was still married will want to understand how that happened and what each party knew. An honest, documented explanation is essential.

Third, a person who has been through a void ceremony should obtain legal advice before taking any further step. The question of whether to marry again, when to do so and how to describe the earlier ceremony in the application should be settled before lodgement, not after a case officer raises it.

Couples who intend to marry should wait until the divorce has taken effect and then marry in a valid ceremony. A partner visa while still married is often best handled by applying as de facto partners first and marrying later, once the law allows it.

Choosing the right time to apply

The right time to apply for a partner visa while still married depends on four things: when the earlier relationship ended, how long the new relationship has been exclusive, whether a divorce is underway, and where the applicant is. There is no single answer. The options below are the main ones, and the correct choice depends on the individual facts.

Option 1: wait for the divorce, marry, then apply as spouses

Some couples choose to wait until the divorce has taken effect, marry in a valid ceremony, and then apply as spouses. This avoids the de facto 12-month requirement, because married couples have no minimum relationship length. It also produces a clear legal position.

The disadvantage is delay. Waiting for the 12-month separation period, the divorce hearing and the date the divorce takes effect can take a long time. During that time the applicant's current visa may expire, or a condition such as no further stay condition 8503 may limit their options. An applicant who becomes unlawful in Australia may face the Schedule 3 criteria when they eventually apply. Our Schedule 3 waiver service and the guide to the Schedule 3 partner visa waiver explain how those criteria can be addressed. Applicants who are in Australia as visitors should also read our guide to moving from a tourist visa to a partner visa.

Option 2: apply now as de facto partners

Many couples in a partner visa while still married situation apply as de facto partners without waiting for the divorce. This is legally open where the new relationship has been exclusive for long enough to meet the 12-month requirement, or where an exception applies.

This option requires the strongest evidence of separation, because the case officer will see an undissolved marriage on the forms. It also requires accurate dating. If the new relationship overlapped with the earlier marriage relationship, the period of overlap cannot count towards an exclusive de facto relationship.

Option 3: the Subclass 300 Prospective Marriage visa

An applicant outside Australia who intends to marry an Australian partner may consider the Subclass 300 Prospective Marriage visa. This visa requires a genuine intention to marry, and at the time of decision there must be no impediment to the marriage under Australian law. Both parties must be free to marry, and the intended marriage must be capable of recognition as valid.

For a partner visa while still married situation, this means the earlier divorce must be in place, and recognised in Australia, by the time the Subclass 300 is decided. The Department's policy notes that previous divorces are the most common impediment issue. Tribunal decisions in the database, such as Hem (Migration) [2023] AATA 3350, where the issue was that there was no longer an impediment because of a valid Cambodian divorce from a previous partner, and Masri (Migration) [2019] AATA 4434, where evidence of the sponsor's divorce from his first wife was provided, show how the divorce question drives these cases.

Marrying during processing

A couple who apply as de facto partners can marry later, once the earlier divorce has taken effect. The new marriage is then valid. The Department should be told about the change of circumstances, usually through Form 1022 notification of changes in circumstances. Marrying during processing can strengthen the evidence of commitment, but it does not repair any earlier void ceremony, and it must happen only after the divorce is final. Because processing can take a long time, as our guide to Subclass 820 processing times explains, many couples in a partner visa while still married situation marry while their application is still being assessed.

Onshore applicants should also consider the effect of timing on their bridging visa. A valid onshore Subclass 820 application usually brings a bridging visa with it. Our guides to bridging visas in Australia and Bridging Visa A explain how that works, and our article on work rights while waiting for a Subclass 820 covers working during processing.

Disclosure and honesty in a partner visa while still married application

Honesty is essential in a partner visa while still married application. The partner visa forms ask whether each partner has been married before, including whether they are still legally married, and if so why. The answer must be accurate. Declaring earlier relationships on the forms is a separate topic, and the Form 80 guide explains the personal particulars form.

Two integrity risks are specific to this topic. The first is describing a void marriage as a valid marriage. If an applicant ticks "married" and relies on a marriage certificate that is void, the application is built on a legal error. Where that is done knowingly, it may also raise the public interest criterion in PIC 4020, which deals with false or misleading information and bogus documents.

The second is earlier visa applications. A person who described themselves as married, separated or single in an earlier application must make sure the history they now give is consistent with what they said then, or must explain any difference. In the Tribunal's database of remitted decisions, Pham (Migration) [2021] AATA 4350 concerned a previous visitor visa application in which the applicant answered "married" while separated and later divorced, and 1900688 (Migration) [2021] AATA 1812 concerned previous relationships, an applicant who had not obtained a divorce from a previous spouse and the validity of the parties' marriage. In both, as reported, the Tribunal remitted the matter. These cases show that integrity concerns about marital status can be answered with credible evidence, but they also show how quickly marital status becomes an integrity issue.

If the Department asks for more information, it will usually do so by a section 56 request. If it has adverse information, it may send a section 57 natural justice letter. Both should be answered carefully, with documents, and within the time given.

What happens if a partner visa while still married is refused?

A refusal of a partner visa while still married is usually based on one of three findings: that the applicant is not the spouse of the sponsor because the marriage is void, that the de facto relationship has not been shown to be exclusive or genuine, or that the de facto relationship did not meet the 12-month requirement at the time of application and no exception applied.

Most partner visa refusals can be reviewed by the Administrative Review Tribunal. The time limit for applying for review is short and strictly applied, so the refusal letter should be read as soon as it arrives. Our guide to urgent immigration lawyer advice explains what to prepare. The Tribunal reviews the decision afresh, on the evidence before it at the time of its own decision, and it can consider whether the applicant is a de facto partner even where the Department dealt only with a claimed marriage. Najem [2026] ARTA 575 is an example of a relationship being assessed as de facto at review.

Our pages on partner visa refusals, partner visa refused appeal options and why Subclass 820 partner visas are refused explain the process. Where an applicant has other options, our guide to a partner visa after a visa refusal explains how a fresh application may work. If the Tribunal affirms the refusal and there is an error of law, judicial review may be available in limited circumstances.

Common mistakes in a partner visa while still married case

The most common mistakes in a partner visa while still married case are avoidable. They include:

• Relying on a void marriage certificate. Lodging as spouses on the strength of a marriage that took place before the earlier divorce took effect.
• Marrying between the hearing and the effective date. Treating the divorce hearing date as the date the divorce is final.
• Assuming a religious divorce is enough. Relying on a religious or customary divorce without checking that it ended the marriage in law.
• Leaving the separation unexplained. Disclosing a current marriage on the forms without any evidence of when and how the relationship ended.
• Inconsistent dates. Giving different separation dates in the forms, the relationship statement and the Form 888 statements.
• Counting overlap. Counting a period when the new relationship overlapped with the earlier marriage relationship towards the de facto 12 months.
• Ignoring visa expiry. Waiting for a divorce while the current visa runs out, and then facing Schedule 3 or a no further stay condition.

Each of these mistakes can turn a strong relationship into a refused application. Most of them can be identified and dealt with before lodgement. Our comparison of a partner visa lawyer and doing it yourself explains where self-prepared applications most often go wrong, and a second opinion from an immigration lawyer can check a draft application before it is lodged. Couples who have already lodged their own application can also have it reviewed; our article on hiring an immigration lawyer after lodging your own visa application explains how that works, and the guide to partner visa evidence for the Subclass 820 sets out the evidence categories case officers expect.

How My Migration Lawyers helps with a partner visa while still married

My Migration Lawyers acts in partner visa while still married matters regularly, and is well placed to handle the complex cases in which an earlier marriage has not been dissolved. These matters involve family law, marriage law and migration law at the same time, and the order in which steps are taken can decide the outcome. We approach them carefully and honestly, with the client's real history at the centre of the application.

On a partner visa while still married matter, the work usually includes:

• Mapping the timeline. We establish, from documents, when the earlier relationship ended, when the new relationship began, when it became exclusive, and where any divorce application stands.
• Deciding the legal basis. We advise whether the application should be made as de facto partners now, after a divorce and a valid marriage, or through the Subclass 300 pathway, and we explain why.
• Checking the earlier divorce. Where a divorce has been obtained overseas or through a religious process, we assess whether it is likely to be recognised in Australia before anyone relies on it.
• Identifying the risks. We check for a void ceremony, bigamy concerns, earlier inconsistent declarations, sponsorship limitations, visa expiry, condition 8503 and Schedule 3.
• Preparing the evidence. We help clients gather separation evidence and relationship evidence across the four aspects, and we prepare the forms and submissions so the timeline is consistent throughout.
• Presenting the client's account. The relationship statement is the client's own evidence, in their own words. We make sure it addresses the earlier marriage directly and is reviewed and corrected by the client before lodgement.
• Responding to the Department and the Tribunal. If a case officer raises concerns, or a refusal follows, we prepare the response or the review.

The firm is led by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and our partner visa lawyers service. Consultations are held by video, so we act for couples across Australia, including clients of our partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart, the Gold Coast and Parramatta. Clients with wider migration questions can also contact our immigration lawyers in Sydney and immigration lawyers in Melbourne. Our guides to booking an immigration lawyer consultation and choosing the best partner visa lawyer in Australia explain what to expect.

If you or your partner is still married to someone else and you are planning a partner visa, the timing of each step matters. Getting advice before you marry, before you lodge and before your current visa expires gives you the most options. A partner visa while still married can be prepared properly when the legal basis is right from the start.

Book a consultation with My Migration Lawyers to discuss your partner visa while still married, or call 1300 040 300. You can also reach us through our contact page.