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Can I apply for Partner visa if I’m still married and I cannot get a divorce?

partner visa married marriage divorce divorced australian migration immigration spouse de facto

In my experience of practising migration law, I have been approached by clients who would like to apply for Partner visa but they are still legally married to someone and they cannot obtain a divorce. Most of these clients are usually from countries where divorce is still illegal, namely the Philippines and the Vatican City. However, there are also clients from countries where divorce is available, but they cannot simply get a divorce due to unforeseen events or reasons. Although annulment is an alternative in countries where divorce is not allowed, this legal proceeding is only extremely costly. So, you might ask the question ‘Can I apply for Partner visa if I am still married and I cannot get a divorce?’

The answer to this question is quite complex. Legally, you cannot marry another person if your marriage is still valid. Fortunately, the Australian migration framework recognises ‘de facto relationships’ with Partner visa applications. The concept of a ‘de facto relationship’ is explained in section 5CB(2) of the Migration Act 1958. Two persons who are not married to each other are in a ‘de facto relationship’ if:

  1. they have a mutual commitment to a shared life to the exclusion of all others; and
  2. the relationship between them is genuine and continuing; and
  3. they:
    • live together; or
    • do not live separately and apart on a permanent basis; and
  4. they are not related by family.

So, the next question is ‘How can I apply for a Partner visa if I cannot obtain a divorce?’ The answer to this question situates under section 5F(2)(d)(ii) of the Migration Act 1958. In accordance with this legislation, no spousal relationship exists where the parties to the (former) relationship are ‘permanently separated’ or ‘living separately and apart on a permanent basis’. This indicates that a party in a marriage can enter into a de facto relationship if that party could prove to the immigration authorities that his/her marriage with their ex-partner is no longer in existence. In layman terms, you must provide evidence to the immigration authorities that your previous marriage has permanently ended and provide your reasons or circumstances on why a divorce has not been obtained.

Sounds easy? Not exactly…Why? Because it is your responsibility to justify that your spousal relationship with your ex-partner has permanently ceased and it is impossible for you to get a divorce.

If you are in this type of situation or you just simply want to apply for Partner visa, contact our team of registered migration agents and immigration lawyers to book your consultation. We will provide you with all the information you need to know regarding marriage, divorce, partner visas and more.


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