Can I Apply for an Australian Partner Visa If My Partner Is Still Legally Married to Someone Else?
Yes, potentially.
Being legally married to another person does not necessarily prevent someone from being in a genuine relationship with a new partner for Australian spouse migration purposes.
There are circumstances in which a person may have separated from their spouse but remain legally married for many years. This can occur where divorce proceedings are lengthy or difficult, where a former spouse cannot be located or contacted, or where the laws of the country concerned make obtaining a divorce particularly difficult.
This can be particularly relevant in countries such as the Philippines, where obtaining a divorce can be difficult. People may separate, establish new relationships and move forward with their lives without being able to formally end their previous marriage.
No one should necessarily be expected to put their life on hold indefinitely simply because a previous marriage has not yet been formally dissolved.
A note about the broader application of these issues: Although the discussion in this article focuses primarily on spouse and partner migration, many of the relationship issues discussed can also arise in other Australian visa applications. For example, applicants for skilled migration visas such as the Subclass 189, 190 and 491 visas, as well as National Innovation Visa (Subclass 858) applicants, may need to provide evidence of their relationship with a spouse or partner. The specific requirements will depend on the visa being applied for and the circumstances of the applicant.
What Does the Australian Government Look At?
Where a person is legally married to someone else but has entered into a new relationship, the circumstances of both relationships may need to be considered.
The applicant may need to provide evidence demonstrating that the previous relationship has ended. This could include evidence of separation, the circumstances surrounding the separation and, where relevant, attempts to locate or contact a former spouse.
However, the existence of a previous marriage does not automatically mean that the new relationship cannot be recognised for Australian migration purposes.
The focus will also be on whether the new relationship is genuine and continuing.
This means that evidence about the new relationship can be extremely important. Depending on the circumstances, this may include evidence of the couple's history, communication, financial and household arrangements, social relationship and commitment to one another.
If you are dealing with a previous marriage that has not yet been formally dissolved, it is important to understand how your particular circumstances may affect your Australian visa options before proceeding. If you would like advice about your circumstances, you can contact Graham-Nguyen & Associates to discuss your options.
What If the Previous Spouse Has Disappeared?
I have also encountered circumstances where a former spouse has effectively disappeared and cannot be contacted.
In situations like this, obtaining a divorce may be particularly difficult and can take considerable time. That does not necessarily mean that the person cannot move forward with a new relationship or explore Australian migration options.
The circumstances of the previous relationship will need to be explained and supported by appropriate evidence. At the same time, the Department will assess whether the new relationship is genuine and continuing.
The key point is that being legally married is not necessarily the same thing as being in an ongoing relationship.
A Real-World Example
I have previously assisted with a case involving a couple from the Philippines where one partner had previously been married. That marriage had ended, but the divorce had not yet been formally finalised when the person entered into a new same-sex relationship.
This presented some interesting issues. The applicant's previous marriage needed to be addressed, including demonstrating that the relationship had genuinely ended even though there was not yet a final divorce. At the same time, we needed to provide strong evidence that the new relationship was genuine and continuing.
The fact that the applicant had previously been in a heterosexual marriage and had subsequently entered into a same-sex relationship was another aspect of the case that needed to be carefully explained and supported by evidence.
The focus was not on making assumptions about the applicant's past or present relationship, but on establishing the facts and providing evidence that demonstrated the circumstances of both relationships.
With careful planning, appropriate evidence and a clear explanation of the circumstances, the application was successful. The client was granted their Partner visa and was able to move happily to Australia with their partner.
Every relationship has its own history, and unusual circumstances do not necessarily prevent a successful Australian migration application. What matters is understanding the applicable requirements and presenting the evidence clearly and honestly.
If your relationship circumstances are complicated, professional advice before lodging an application can help you understand what evidence may be required.
What Evidence May Be Important?
Cases involving a previous marriage can require particularly careful preparation because the applicant may need to explain why the previous relationship has ended while also demonstrating the genuine nature of the new relationship.
The evidence required will depend on the circumstances. Evidence relating to the previous relationship may be relevant, as may evidence demonstrating the history and ongoing nature of the new relationship.
There is no single piece of evidence that will resolve every case.
A person who remains legally married to a former spouse should therefore not automatically assume that they are unable to pursue an Australian Partner visa.
Equally, they should not assume that the Department will simply disregard the previous marriage.
The circumstances need to be properly explained and supported by appropriate evidence.
At Graham-Nguyen & Associates, we believe informed clients make better migration decisions.
If you would like advice tailored to your individual circumstances, I would be pleased to help.
Contact us today to arrange a consultation:
📧 Email: enquiries@graham-nguyen.com
👉 Contact Us: https://www.graham-nguyen.com/contact
About the Author
Andrew Graham is the Principal of Graham-Nguyen & Associates and a Registered Australian Migration Agent (MARN 1067354). Based in Singapore, he advises clients throughout Singapore, Asia and around the world on Australian skilled migration, employer-sponsored visas, partner visas, Australian citizenship and other Australian migration matters.
Andrew regularly publishes practical guidance on Australian migration law and policy to help prospective migrants make informed decisions. His articles combine current Australian migration legislation and policy with the practical insights gained from many years of assisting individuals and families with Australian migration matters.
Need Advice About Your Partner Visa?
Relationship circumstances are not always straightforward. A previous marriage, separation, lack of contact with a former spouse or a relationship that does not fit a conventional pattern can raise questions about how the Australian migration requirements apply.
The important thing is to understand the requirements that apply to your circumstances and identify the evidence needed to demonstrate the relevant facts.
At Graham-Nguyen & Associates, I have assisted clients with complex relationship and Australian migration matters, including cases involving previous marriages and new relationships.
If you would like advice tailored to your circumstances, I would be pleased to help.
At Graham-Nguyen & Associates, we believe informed clients make better migration decisions.
Contact us today to arrange a consultation:
📧 Email: enquiries@graham-nguyen.com
👉 Contact Us: https://www.graham-nguyen.com/contact
You Might Also Be Interested In...
If you found this article helpful, you may also be interested in these articles:
• Australian Partner Visas: Understanding Spouse and De Facto Migration to Australia
• Why Evidence Matters in Australian Visa Applications
• Who Can Be Included in an Australian Visa Application? Understanding Dependents and Family Members
Final Thoughts
Being legally married to someone else does not necessarily mean that a person cannot establish a genuine relationship with a new partner for Australian migration purposes.
The circumstances surrounding the previous relationship need to be understood and, where relevant, supported by evidence. At the same time, the new relationship must satisfy the applicable requirements and be supported by evidence demonstrating that it is genuine and continuing.
Australian migration cases do not always fit neatly into conventional circumstances. What matters is understanding the requirements, carefully considering the individual circumstances and presenting the evidence clearly and honestly.
