Can a Lawyer Help With a Partner Visa When We Have a Child Together but Separated?

Can I still get a partner visa if we separated but have a child together?

A partner visa can still be granted after separation where the couple has a child together and both parents' legal links to the child meet the regulations. The applicant must have custody, joint custody or access, or an order under the Family Law Act, for the child. The sponsor must also have court-granted custody or access, an order under the Family Law Act, or a child maintenance order or other formal maintenance obligation for that child. The applicant must also have been the sponsor's spouse or de facto partner until the relationship ended. Our article on partner visa relationship breakdown explains the pathways that remain after separation.

What evidence is needed for the child pathway?

The evidence needed for the child pathway includes the child's birth certificate showing both parents, a parenting order or parenting plan that shows the applicant's parental role, and a court order or formal child support or maintenance document that shows the sponsor's rights or obligations. Evidence of the relationship while it existed is still needed, because the Department must be satisfied it was genuine. Our article on partner visa relationship evidence explains how the earlier relationship is shown.

Does having a child together mean the relationship was genuine?

Having a child together is strong evidence of commitment, but it does not by itself prove that the relationship was genuine and continuing while it lasted. The Department still considers the four aspects of the relationship, namely the financial aspects, the nature of the household, the social aspects and the nature of the commitment, during the time the couple was together. Our article on the nature of commitment explains how commitment is assessed.

What if the separation involved family violence?

If the separation involved family violence by the sponsor, the family violence provisions in Division 1.5 of the Migration Regulations may provide a separate pathway, and the applicant may rely on whichever pathway is stronger. A claim can be made using a court order, a conviction or prescribed evidence from professionals. Our page on partner visa family violence explains those provisions.

Must I tell the Department about the separation?

An applicant must tell the Department about the separation, because it is a change in circumstances relevant to the application. The notice should be given promptly and should explain the pathway the applicant relies on, with the supporting documents or a plan to provide them. Leaving the Department to learn of the separation from the sponsor can damage the applicant's credibility. Our article on partner visa changes of circumstances explains how to notify.

How does My Migration Lawyers act for a separated parent?

My Migration Lawyers reviews the child's arrangements, any Family Court or child support documents and the evidence of the relationship while it lasted, then identifies whether the child pathway, the family violence pathway or both apply. The firm prepares the notice of separation and the submission to the Department, and advises on any family law documents that may be needed to meet the regulations. Separated parents can raise their situation with our partner visa lawyers, and read about the firm's Subclass 820 visa work.