Can I Get a Spouse Visa If I Am Still Divorcing My Ex?

Why can I not get a spouse visa while still divorcing?

A person cannot get a spouse visa with a new partner while still divorcing because a spouse visa requires a valid marriage between the applicant and the sponsor, and a person who is still married cannot validly marry again. A second marriage while the first is still in force is void under Australian law. A ceremony with the new partner before the divorce is final will therefore not support a spouse visa. Our article on a partner visa while still married explains this in more detail.

Can I apply as a de facto partner before my divorce is final?

A person can apply as a de facto partner before their divorce is final, because the definition of a de facto relationship in section 5CB of the Migration Act does not require either partner to be free of an earlier marriage. The new couple must show a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and that they live together or do not live apart permanently. Our article on the de facto partner visa sets out each requirement.

How do I show my previous marriage has ended in substance?

A person shows that a previous marriage has ended in substance by providing evidence of the separation, such as separate addresses, the division of finances and property, notification to banks and government agencies, and any filed divorce or property documents. This evidence supports the requirement that the new relationship is to the exclusion of all others. Our article on previous relationships in a partner visa explains what the Department expects to see.

Does the 12-month de facto requirement still apply?

The 12-month de facto requirement still applies to a couple applying while one partner is divorcing, unless the relationship is registered in an Australian state or territory or another exception applies. The 12 months is counted from when the new de facto relationship began, which may overlap with the end of the earlier marriage. Our article on the Subclass 820 de facto 12-month rule explains how the period is measured. Some relationship registers do not allow a person who is still married to register, so the registration exception may not be available until the divorce is final.

Can we change to a spouse visa after the divorce?

A couple who lodge as de facto partners and later marry after the divorce do not need a new application. The applicant notifies the Department of the change in circumstances and provides the marriage certificate. Our article on partner visas after divorce covers the timing issues couples face around a divorce.

Does my sponsor's earlier relationship matter?

A sponsor's earlier relationship matters if the sponsor previously sponsored a partner or was sponsored as a partner, because regulation 1.20J limits further sponsorships within set periods unless there are compelling circumstances. Our page on partner visa sponsorship limitations explains those limits.

How does My Migration Lawyers help couples where a divorce is still pending?

My Migration Lawyers helps couples where a divorce is still pending by working out whether the de facto pathway is available now, when the 12-month period began and what evidence shows the earlier marriage has ended in substance. The firm also checks any sponsorship limits and plans how to notify a later marriage. Couples can speak with our partner visa lawyers before deciding when to lodge.