# De facto/ partner visa while still married - clearing up the confusion



## aussiegirl (Dec 15, 2009)

Hi all,

I have posted replies to messages on this forum a few times, but had not started my own thread in regard to my own situation; however, after having been confused about the eligibility criteria of the de facto visa AND getting mixed information from both people on this and other immigration forums and the DIAC, I feel now is the right time to post my experience here.

I had searched through other immigration forums, looked through the Migration Act and regulations, and even gotten some info. from an immigration agent about the issue of one party still being married and if they could still be eligible to sponsor or apply for a partner visa. I sent an e-mail in August 2009 to the Aust. Embassy in Seoul regarding my partner still being legally married (but separated) and if he would still be eligible to apply for a partner visa. It went unanswered and so I sent another e-mail in December 2009. Here is the original e-mail:

"I have a question about the eligibility requirements related to the de facto visa. If the visa applicant is still legally married to another person but is separated from this person (not by court order), and is now in a de facto relationship with an eligible Australian sponsor, can they still be granted a de facto visa? The website says that de facto spouses do not have to be legally married, but must be in a "genuine and continuing relationship with the exclusion of all others". It says nothing explicitly about one person still being legally married and whether this changes their ability to get the visa

I have read from some sources that they could still get the visa if the applicant provides evidence that the separation is permanent and they have a commitment to their new de facto partner. What evidence do they need? If they don't have a legal separation, can they write a statutory declaration to say that the marriage is over? How about letters or e-mails from the applicant and previous spouse discussing and/ or arranging divorce? Could this prove it?"

I got this quick response after a few days:

"Please be advised a person who is still married to another partner is not eligible to be a sponsor for Partner Migration. The sponsor is required to provide evidence of legal divorce (divorce certificate) in order to be eligible to sponsor a partner"

Now, I was frustrated at this, because NOWHERE in the Act or regulations does it say anything to this nature. So, I searched again and stumbled upon the LEGEND trial available through the DIAC website. Using this, I found the PAM documents that agents and COs use when assessing visas.

It clearly states in PAM 3: DIV1.2/REG1.15A section 5 "Regulation 1.15A(2) - De facto spouse relationships" that *it is possible to satisfy the criteria even though still legally married if they can satisfy the CO that they are permanently separated from that person*. It also references section 11.3 as to what criteria should be met to show the de-jure relationship has ended. And it says, as I realised, in 11.3.3, 11.3.4 and 11.4.1 that *there is nothing in regulation 1.15A that requires parties to divorce in order for the spouse relationship to have ceased and that they need only be living separately and apart on a permanent basis* (as is the case for my partner).

I used the complaints page on the DIAC site and explained thoroughly what happened. This message went to the Global Feedback Unit and was then forwarded very promptly to the Aust. Embassy in Seoul. The acting PMO at the Embassy apologised to me and said that I was correct and that my partner is still eligible to apply for a de facto visa. The CO in question has also been told of their mistake and will undergo further training.

So, I encourage everyone to use legend, available through the link here:

Legislation & Regulations

Do your research and get a second, third or fourth opinion if needed! If you're not happy with the answers you receive from DIAC or your CO, complain via the DIAC site because you will get a clear answer and it will help future applicants who are in your shoes.

So, there should be NO confusion from now on about whether still being legally married can bar you from being eligible for a de facto visa! Sorry for the long message, but it had to be done


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## aussiegirl (Dec 15, 2009)

Hi again,

I thought I should explain a little bit more about the PAM and using LEGEND, and give you a better link:

LEGENDcom

Unfortunatley the PAM (procedure and advice manual) is not readily available to the public. This is a further manual that compliments the Act and Regulations and is used when COs and agents or immi. lawyers assess visa eligibilty. I have seen it available at the Aust, National Uni. in the reference section (you can also order a copy for a fee) but I can't find it on any of the Department of Justice or Comlegal sites.

Once I searched the PAM with LEGEND, I tried to add the relevant section to my favourites in Explorer, but because of the LEGEND web security, I could only access it for a limited time and couldn't go back to the saved page. So, if anyone wants to search the PAM through LEGEND, they have to search using key words and print out whatever they find for future reference because the trial session only lasts a short while. You can of course start new trial sessions as often as you like.

Try it out and see what comes up because it gives you an insight into the thought processes that immi goes through when looking at your visa  Happy hunting!


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## Wanderer (Jun 16, 2007)

Hi Aussiegirl, thanks for the posts and hope your partners visa application is underway.

It is one of the problems with using the Immi regulations that whilst they are generally OK for the more straightforward cases, there is always going to be more information tucked away in legislation and Immi heirarchy rightly in my book have decided that it is probably a bit much to have every CO totally versant with legislation and thus you have the PAM.

It is probably a reasonable set-up for most people for I doubt that there'll be too many applicants who have the capacity to delve into reading legislation and necessarily comprehend it, and especially where immigration legislation is a bit like all forms of Governement legislation in that you have ammendments upon ammendments and Xreferences all over the place, a bit like a massive bowl of spaghetti with entertwining strands.
You are somewhat of an exception I suspect and have done well; evidence is that some people even find the Immi site enough of a handful and in deed there is a wealth of information on it but it can take some digging out.

When I read


> "I have a question about the eligibility requirements related to the de facto visa. If the visa applicant is still legally married to another person but is separated from this person (not by court order), and is now in a de facto relationship with an eligible Australian sponsor, can they still be granted a de facto visa? The website says that de facto spouses do not have to be legally married, but must be in a "genuine and continuing relationship with the exclusion of all others". It says nothing explicitly about one person still being legally married and whether this changes their ability to get the visa
> 
> I have read from some sources that they could still get the visa if the applicant provides evidence that the separation is permanent and they have a commitment to their new de facto partner. What evidence do they need? If they don't have a legal separation, can they write a statutory declaration to say that the marriage is over? How about letters or e-mails from the applicant and previous spouse discussing and/ or arranging divorce? Could this prove it?"


My first thoughts were of a situation where I knew that to be the case and indeed supportive information much as you suggest was used, minus a statement from the previous spouse but with some statutory declarations from close friends who were knowledgeable - this being more than 15 years ago though!

And then in reading on re:


> I got this quick response after a few days:
> 
> "Please be advised a person who is still married to another partner is not eligible to be a sponsor for Partner Migration. The sponsor is required to provide evidence of legal divorce (divorce certificate) in order to be eligible to sponsor a partner"
> 
> ...


You may have noted the glaring inconsistency there and how the officer did not really answer the question you asked re the applicant.
The answer was in regard to a sponsor and I've not looked but there are requirements re sponsors.

I have had reasonable contact myself with Immi via their Global Feedback and whilst I'm never overly surprised if I get varying answers re verbal contact for Immi will have a wide range of people with varying knowledge answering phones, the Feedback Unit does seem to provide a more consistent response.

You could even find with addressing somewhere like an embassy that you may have a person less knowledgeable, perhaps even someone not with English as a first language [ locals do get employed and there are advantages in that] and so perhaps the reason for your question not actually being addressed.

We had a poster a while back applying for a partner visa in NZ and someone in the NZ office had advised that her partner from Northern Ireland needed an Irish Police Clearance!
A little help sorted out the geography.

I do know that different immigration forums do have their particular Modus Operandi and the Ozforum is far from perfect but I'm rather taken with


> the eligibility criteria of the de facto visa AND getting mixed information from both people on this and other immigration forums


 for I am not aware that too much has ever been discussed on the forum along the lines of your situation query.

Anyway, you have the answer now and as I have said, hopefully it is all full steam ahead and you will have some better experiences to contribute now.
Do chip in anytime and best wishes.


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## xdorota (Dec 1, 2009)

Hi ausiegirl,

I am so glad that you have finally (and luckily) been able to get the information you needed. I feel that I need to make the following important points:

Free version of Legendcom is very outdated. There is nothing in the current version of PAM that specifically refer to eligibility of the applicant and/or sponsor for a Partner visa on a de facto grounds if any of them is legally married to someone else. Your conclusion is right: there is no bar on being a sponsor or an applicant whether under the provisions in the Act, the Regulations or PAMs.

The policy is now worded using more general concepts. Here is an extract:

'5.4 Reg. 1.09A(3) - four factors
In accordance with regulation 1.09A(2), in all cases, decision makers are to take into account collectively the four factors specified in regulation 1.09A(3)(a)-(d), that is, the:
• financial aspects of the relationship
• nature of the household
• social aspects of the relationship and
• nature of the persons’ commitment to each other.
In doing this, officers will be able to satisfy the s5CB(2) requirement that the:
• relationship is ‘genuine’ and/or ‘continuing’
• parties have a ‘mutual commitment to a shared life to the exclusion of all others’ and
• partners are living together (or at least not living apart permanently).
The officer’s assessment must not be based by only comparing how many factors listed in regulation 1.09A(3) are satisfied against how many are not satisfied. Rather, it involves officers:
• considering each individual relationship against all factors listed in regulation 1.09A(3) and
• taking into account any other relevant information provided by the applicant (or information otherwise available to officers), assessing whether or not, on balance, the requirements of s5CB(2) are met and that a de facto partner relationship exists.
Decision makers must decide the weight to be given to each factor or characteristic. However, they are not limited to the four factors at regulation 1.09A(3), but can consider any additional information that is reasonable and practicable on which a decision can be based.'

There is more policy (PAM) about what matters are to be taken into account in considering each factor, but there is no room to quote this on the forum.

The fact that your partner remains legally married can be taken as strong contra-indication to at least some of the relevant factors, e.g. financial aspects - if they still have property in joint names, social aspects - if they are regarded by the general community as a couple, and, most importantly, the nature of your commitment to each other - if he has not taken any steps to legalise his status and finalise his legal obligations towards his wife, etc.

These and other issues are considered in each individual relationship and the 'weight' given to each factor depends on the CO that considers your case. It may be that in Seoul it is not socially acceptable for a married person to be in another relationship and thus the strong view of the person who replied to your inquiry. Rather than criticising them you should take their advice on board. If I were you I would take this advice as an indication as to how much weight is likely to be given by a CO in Seoul to the fact that your partner is still legally married to another person. I would suggest that you address that issue in your application by providing an explanation as to why he is still legally married and what steps he has taken or is planning to take to obtain a divorce and finalise his financial and other obligations towards the other person.
Hope it helps.
Dorota


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## aussiegirl (Dec 15, 2009)

Thanks Wanderer and xdorota for you input and advice 

I was so crushed for a while, thinking that my partner and I had no hope of getting a partner visa on de facto grounds. But something told me in the back of my mind that it was possible.

I am glad to know that the PAM has been updated and reflects are more open-minded and tolerant approach to assessing de facto visas. As people say, relationships just happen. And not all of them can be as cookie-cutter perfect as we may hope or preach.

My partner has no contact with his ex other than to try and arrange the divorce. She had mentally and physically abused him and constantly told him to get out and leave, so eventually he had enough and did as she said. I won't go into all the ugly details, but she is obviously insecure and has anger management issues, as she constantly started arguments over nothing. 

He left her, and all of his money and belongings, around 6 years ago to return home. They have no children and no joint financial commitments at all. They both agree to divorce, and she said she was working on it, but so far we have heard nothing for over 6 months, though they have been discussing divorce for much longer than that. My partner is also looking into divorce here via mediation, since we don't think his ex will want to come to Seoul for the proceedings.

We are planning to move to Australia in around 2 years from now, so we still have some time to work on the divorce, but I wanted to be prepared in the even that we have to go ahead with the applications without him being legally divorced.

I will keep you posted on how things progress and will definitely call on this forum if I have any other questions or queries.

Thanks again everyone for your support


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## Anthony (Jan 30, 2010)

*terms and conditions*

Hi All,

At 2008 we've got a visas Class BN Subclass 136 Skilled - Independent visas to the following applicants:
myself (Primary Applicant) and my wife (Family member) - no extra points were provided from my wife to get this visa

Right after we've moved to AU, but April 2009 we were divorced and she left Australia.

I'm getting to be a sponsor for my new partner (Prospective Marriage Visa (Subclass 300)). 
My worries about Sponsor Eligibility - immi.gov.au/migrants/partners/prospective/300/eligibility-sponsor.htm Prospective Marriage Visa (Subclass 300)[/url]
It says

When you may not be eligible

you have sponsored another partner within the last five (5) years

So, the question is: can my ex be identified as a partner? Will I be restricted to apply?
Please advise!

Thanks!
Anthony


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## Chris McGrath (Oct 11, 2009)

Answer is no, you did not sponsor your first wife as she was included in your 136 aplication, so you are free to sponsor.

Cheers

Christopher McGrath
McGrath Migration Lawyers


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## xdorota (Dec 1, 2009)

Hi Anthony,
you were NOT sponsoring your previous wife, she came as a secondary applicant. Unless you sponsored someone else in the last five years you are free to sponsor your new partner.
Hope it helps,
Dorota


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## Wanderer (Jun 16, 2007)

If you have not informed Immigration of your wife's departure from Australia, it probably would not hurt to do that.
Being a PR visa, it is not necessary but at least it'll have the record straight.


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## silence11 (Feb 17, 2010)

valuable information


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## Guilleanne (Apr 23, 2010)

Hi guys,

My partner and I are also planning to migrate to Australia via skilled migrant or employer sponsored visa. My partner would be the primary applicant and I would be the secondary as his de facto

But here's the situation, he is still legally married but separated for 5 years and we've been living together for 3 years. We have a lot of papers to support it, and I am recognized in his current company as his domestic partner (have docs to prove it) , I have special power of attorney to his estate, and we have a daughter, plus his 2 sons my stepsons from his marriage is living with us. His wife totally abandoned them and have not communicated with my partner or her kids since she left.

Oh and by the way we are Filipinos and we have no divorces here in the Philippines... Which really sucks and annulment of marriage procedure is very expensive and to be granted is close to impossible.

I tried to email immi but still haven't received any answers.. Given the fact that my country does not allow divorce, that is why he is still legally married to his wife, are we still eligible as de facto partners???


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## Chris McGrath (Oct 11, 2009)

Guilleanne said:


> Hi guys,
> 
> My partner and I are also planning to migrate to Australia via skilled migrant or employer sponsored visa. My partner would be the primary applicant and I would be the secondary as his de facto
> 
> ...


No need to worry. Your defacto relationship will be recognised regardless of the fact that your husband is married.

You may have a problem with the children. Unless your husband has a court order giving him custody, it is normal to get a statement from the other parent allowing the children to migrate.

Can you get such a court order?

Chris McGrath
Migration Lawyer (29 years experience)


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## Wanderer (Jun 16, 2007)

As Chris indicates, getting custody court orders is something that'll need to be looked at and also you ought to be aware of changes being made to skilled immigration processes if you're not already, not expected to be fully implemented until later this year.
There's a sticky thread with a link and you'll find links all over the Immi site in skilled sections.
Employer Sponsorship would most likely be a quicker means but then you may need to address temporary Vs permanent residency status.


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## aussiegirl (Dec 15, 2009)

Hi there,

If you follow the advice that was given to me by the Migration Agent xdorota on the previous page of this thread, it will help you prepare the evidence you need to show that you have a comitted relationship with your partner and that his legal marriage is not a barrier. Most importantly, you have to show that he is doing everything he can to support you, and that he is making measuers to try and end his legal union with his ex.

Immigration sees a lot of applications from the Phillipines, so I'm sure they are aware of the situation there RE not being able to get a divorce, especially since foreign Aussie Embassies and consulates usually have locally employed staff to help with cultural issues.

There is hope, so don't give up


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## Guilleanne (Apr 23, 2010)

gee thanks guys! This info really made us excited to go ahead and move to Australia.

@Chris McGrath, will try to get a court order. We have no idea where the mom is. I believe the court will grant him sole custody because she abandoned them.

@aussiegirl, thanks for the info. We are also thinking that Employer sponsorship is the faster route. We will get in touch with an agency here who handles job orders from Australia and ask them if the work visa they issue can bring family members.

I hope this works out well.


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## coach (Mar 31, 2010)

*Sole custody*



Chris McGrath said:


> No need to worry. Your defacto relationship will be recognised regardless of the fact that your husband is married.
> 
> You may have a problem with the children. Unless your husband has a court order giving him custody, it is normal to get a statement from the other parent allowing the children to migrate.
> 
> ...


Dear Chris,

I am hoping that you can help me. I am in the process of getting a divorce from my husband. He has signed over sole custody of our child to me and he has left the country. Will sole custody care and control be enough for the immigration authorities to allow my child and I to migrate with my partner? We are all British citizens but none of us live in the UK including my ex-husband. I live in the juristiction of where the divorce is being filed, but my ex-husband does not.

I do hope that you can help, as I seem to be getting lots of conflicting information.

Many thanks


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## AusCodes (May 25, 2010)

*Finally.*

Aussiegirl, your situation is uncannily like my own.

It's 2.am and I've had a rough few months, so I'm going to try and make this simple.

My partner came here in september 2009. She is married but separated for two years. Her husband has appeared to be helpful in the divorce procedure however we've found he has been claiming the 800 U.S.D or so a fortnight for her (He is in the U.S Military) and has never had the intention of losing this payment. I have fully supported her financially and she has done a lot of volunteer work in our community for 9 months now. We have fought nail and tooth to survive until she were eligible to re-marry or until we could get the information we needed to get her a more permanent Visa.

We would have no problems providing evidence that we're completely commited to each other, in love and hoping to eventually be dual contributing members of society.

She is on an E.T.A and is nearing the end of her 12 month period, On top of living as normal a life as we can together we've had not the money to get her periodically out of the country each three months, and have been fearful of how we would be treated if we alerted Immigration etc... regardless of our situation.

The furthest we've been able to get by ringing the immigration line anonymously was finding out about the bridging Visa. However we're still unsure as to whether we can apply for a more permanent or semi-permanent visa for her, despite the prior situation.

Summed up:

She's married, with every intention of divorcing her husband.
Her E.T.A in which she has failed to leave the country each three months (Due to extreme financial hardship) is coming to the end of it's 12 month total period.
The idea of us being apart is devastating. We're in love and will do anything to stay together, However we want to be legitimate, I can't support us forever on a disability support pension.

I have no question to her willingness to be productive and self sufficient, and to help me build a life with her.

This is the most knowledgeable Forum I have found on all the relevant topics. And if anyone can shine some light on "What to do next" I'd gain some faith in humanity.

Again sorry about the TL;DR post... And the soppy parts. It's early morning and I can't sleep. Please help.


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## Chris McGrath (Oct 11, 2009)

*Defacto relationships*



AusCodes said:


> Aussiegirl, your situation is uncannily like my own.
> 
> It's 2.am and I've had a rough few months, so I'm going to try and make this simple.
> 
> ...


I am worried about what you say re her current visa. You say she has overstayed her three months, is that correct? Then you say she is nearing the end of her 12 months period. Can you please explain what you mean by this. An ETA visa allows entry to Australia as mant times as the person wants in the life of the visa, but to stay no longer than 3 months on each entry. If you want to contact me privatelly I wil answer all your questions. I have 28 years experience as an Australian migration lawyer.

Applying as a defacto spouse is not affected by the fact that one or even both of the parties are currently married, so long as the couple are genuinelly living together. Immigration can waive the 12 months period that constitutes a defacto relation where there is a child of the relationship, or even pregnancy.

Cheers

Christpher McGrath
Migration Lawyer


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## Wanderer (Jun 16, 2007)

AusCodes said:


> Aussiegirl, your situation is uncannily like my own.
> 
> It's 2.am and I've had a rough few months, so I'm going to try and make this simple.
> 
> ...


From what you say, your partner has clearly breached the conditions of her visa as the ETA has the requirement of leaving the country every three months as you have been aware of, the financial hardships not a reason not to.

You can either look at seeing agents if you desire but I'd be surprised if much help can be offered in a clear breach incidence.

Your partner is very lucky she has not yet been apprehended and deported and I would suspect there will be zero chance of her getting any sort of a visa from within Australia.

It may be possible that if she meets eligibility requirements, she may be able to apply for a partner visa from outside of Australia but to get a 12 months relationship together, it sounds as though she would require further illegal stay.


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## coach (Mar 31, 2010)

Dear Wanderer.

Many thanks for your PM. It was really helpful. I would like to talk to you a little more about my situation, but you were right, I am not able PM yet. I will contact you again when I have that privillage. Thanks again.

Coach


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## amy21 (May 26, 2011)

*help with de facto relationship-do we need divorce to prove his character?*

Hi everyone,

A brief history of myself; I'm a holder of a 457 visa granted last feb 2008 and expiring on feb 2012. In a de facto spouse relationship with a 2 year old kid at that time visa was granted. I gave birth August of last year to our second child. I decided to give birth in the Philippines and temporarily left my 2 son's in the care of my parents. My youngest son is not yet under my visa because it took awhile to request for a passport that was just released recently.

I was able to find a sponsor willing to sponsor me on a RSMS visa. The migration agent of my future employer suggested Offshore RSMS -class 119 would be appropriate for us since our 2 kids are outside Australia. Meaning we need to exit so that a decision will be made to the application. We plan to exit Australia by 2nd week of August of this year since originally we plan to go back to the Philippines to celebrate the 1st year birthday of our youngest son. If application is successful, then that is the time I will only resign from my current employer, following of course the days I still need to stay from the day I submitted my resignation letter. My future employer states that she is willing to wait for me.

>My first concern is, WHAT IF APPLICATION WAS DENIED? Are we still allowed to go back to Australia on a 457 visa? Or what would be our other options on this if this happens?

As for my partner's previous relationship, he was married but separated to his wife because she abandoned him and his 5 children last 1998. We met 2004 and on that year decided to live in together. We have 2 sons. And our relationship is going stronger for 7 years now. Up until now, my partner does not have any communication with the wife since she left and refuses to communicate till now that they both have partners in life and going in different directions. She is currently in New York and my partner tried contacting her-silly as may sound but our only way is through facebook -which till now she ignores him.

The agent wants my partner to file for a divorce here in Australia. Reason behind is to clear the character issue of my partner. Which would cost us more $$ aside from a huge amount of money we are going to spend for this application among other things such as interstate relocation expenses. Please don't get us wrong, of course we wanted to be married someday too but to do it now, we don't have the time coz it will take 3-4 months processing time, and we are scheduled to go back to Philippines by August, nor the money to spend for this at this time.. It does not help that I learned through research that, character is not in question because WE ARE NOT MARRIED, thus, NOT POLYGAMUS by nature. I just happen to fall in love with a man on a situation like this. IF character is on question, there was never a complaint on him on violence or other that would put his character in question. The wife just abandoned him for reasons only the wife knows. And now refuses even to communicate with him. He tried to settle everything so that he can move on coz its been what 13 years now? But what can you do when the other person refuses too communicate?

Immigration Law: As stated on regulation 1.15A (2) ; " it is possible for a party to a de facto relationship to satisfy regulation 1.15A (2) requirement even though still legally married to another person provided they satisfy the decision maker that they are permanently separated from that person."

In which, the 2 adult sons of my partner on his previous relationship signed a JOINT AFFIDAVIT prepared by a lawyer stating when their parents separation was among other pertinent facts regarding the current relationship of their parents. This document, among other requirements to prove our de facto relationship, was used in our application for 457 visa before.

Please let me know if what I believe is right and what are we gonna do if the Agent still insist for my partner to file a divorce? We can't change him because aside from he is the agent of our future employer, he had some successful PR cases that we know of personally.

Please help&#8230;.

Amy 21


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## aussiegirl (Dec 15, 2009)

Hi there,

I'm not too sure about the 457 visa and whether you'll be able to re-enter Australia on that if the other visa falls through.

As for divorce in Australia, it actually doesn't cost anywhere near as much as it would in the States (which could be over $5000 US). In Australia it costs $550 to file the papers and it can be done without a lawyer. There are divorce kits available:

How do I apply for a divorce?

Your partner will have to file as a sole applicant (i.e. without his ex) and serve his ex-wife the papers, but if she doesn't respond the divorce can be done without her having to be there.

I guess the agent recommended divorce since it would make your relationship stronger in the eyes of DIAC. Of course, as my post states, you can prove a genuine relationship while he is still legally married, but this will require very strong evidence. If you successfully proved your de facto relationship when applying for the 457 visa, then I would think you could use the same evidence for the new visa. Why would DIAC reject evidence that they accepted previously? You could also get your partner to write a stat.dec stating he has tried to contact his ex and that she has been unresponsive and uncooperative.


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## weng (Nov 19, 2010)

aussiegirl said:


> Hi again,
> 
> I thought I should explain a little bit more about the PAM and using LEGEND, and give you a better link:
> 
> ...


Thanks Aussiegirl for the extensive research you have done. My case is similar to yours and I got declined on the grounds that we dont have a commitment to a shared life in exclusion to others.

We have applied to MRT and now gathering evidences to prove that we have a genuine and continuing relationship.I have sought annulment of my marriage and will remarry in the next few months when i get the finality of my annulment.

My question is, will MRT admit new evidences like the annulment and remarriage?Will they not regard this as staged?I should have nullified my 1st marriage before applying had I known that it would help my application.

I am sorry to have put it here.No one has answered my queries in the past.We were advised by our agent that we will be approved on the strength of our de facto relationship but when i returned home, all troubles started because I was visiting my kids and so on....These acts misconstrued as having relationship still with my ex-husband.

However, we are here for the long haul, MRT it shall be from now on....


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## aussiegirl (Dec 15, 2009)

Hi Weng,

I had read on another thread that MRT only takes the evidence submitted at the time of application into account. But, after looking at the MRT website myslef I have found some information that seems to contradict that:
_
Tribunal staff will immediately request the Department of Immigration and Citizenship (the Department) to provide any documents or files it has that relate to the decision you want reviewed.

The Tribunal's review process varies according to the circumstances of each case. However, the Tribunal will generally:
- seek further information; 
- invite you to comment on any information that the Tribunal considers would be the reason, or a part of the reason, for not changing the decision under review; invite you to appear to give oral evidence and present arguments (in some cases, this may be by telephone or by videoconference); 
- invite you to nominate other persons who could give or provide evidence; and invite you to suggest other evidence or materials that the Tribunal might obtain; 
- provide you with a statement of the Tribunal's decision and reasons._

*Can I give the Tribunal further information or evidence?*_

When lodging your application, you should provide a copy of the Department's decision, any evidence supporting your application, and a statement setting out why you disagree with the Department's decision. If this is not possible, you should send these materials as soon as possible._

So, it seems that you will be given a chance to not only comment on the DIAC decision, but to also inform the Trubunal of what you have done since the rejection to disolve the marriage.


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## jchrissy (May 31, 2011)

*Under Sub Class 309 and looking to apply for De Facto Relationship Visa*

hi everyone,

I am currently holding a partner visa sub class 309 (provisional resident visa - spouse visa). me and my husband had been separated since January 2011 (that was when i left the house and moved interstate, our relationship basically ended on July last year but we still live under one roof). I've started dating a new guy (my current partner now) since then (January 2011). We were entered the de facto relationship a month after that (February 2011) but I'm still legally married (haven't divorced yet) to my previous partner. I am currently on the 2nd stage partner visa processing but me and my ex husband already informed the immigration that our marriage is broken down and we informed them as well that we are no longer living together, so basically I have to go back to my country (Indonesia) to apply a new partner visa offshore. I was told that there is a 5 years waiting period since the last time I got sponsored (April 2009, so it's been 2 years now), but it's applied if you try to lodge in an application on shore (inside Australia). They've told me that it's different regulation if I apply it offshore (which is I don't have to wait for 5 years and I have to prove that my relationship with my current partner has been existed for 12 months).

I was wondering if me and my partner still be eligible to apply for the de factor partner visa? We have been living together since March 2011, we had a joint bank account as well and house rent agreement under together name. Please let me know if anyone have an update regarding of a partner visa regulation (as I know immigration always update their policy every year). Hope to hear a feedback soon. Thanks heaps


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## aussiegirl (Dec 15, 2009)

Hi there,

If you applied now for a de facto visa I don't think it would be successful as you would have only 3 months living together. For the de facto visa you need at least 12 months living together before lodging. 

You partner should try to spend time with you in Indonesia to get more time living together.


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## jchrissy (May 31, 2011)

aussiegirl said:


> Hi there,
> 
> If you applied now for a de facto visa I don't think it would be successful as you would have only 3 months living together. For the de facto visa you need at least 12 months living together before lodging.
> 
> You partner should try to spend time with you in Indonesia to get more time living together.


Hi there,

Yeah, I've asked immigration officer here in Brisbane as I am still in Australia at the moment, and they said obviously if I have to go back home, they're pretty realistic that it's impossible for me and my partner to live together, so that criteria only apply if I am applying the de facto partner visa on shore (inside australia). My partner wouldn't be able to live in Indonesia for long period of time though, he has his own business here (in Australia) and he works with other company at the same time as well, so it will be impossible.

You can double check the Australian Immigration website on media/fact-sheets/35relationship. Australian Immigration Fact Sheet 35. One-Year Relationship Requirement

there is a FAQ:

My job in Australia does not allow me to travel to my partner's country to live there for extended periods. We have been in a relationship for 12 months but lived together for only eight months. Will I be eligible to sponsor my partner to Australia?

You may be eligible. It is recognised that it is possible for the parties to be physically apart for periods of time, due to work or travel commitments, yet committed to a shared life.

In assessing a relationship, a number of factors other than periods of physical cohabitation are taken into account.


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## aussiegirl (Dec 15, 2009)

Hi again,

I have seen this FAQ before. I haven't, however, heard of or read of other people who had been granted a de facto visa in the same circumstances. Maybe your circumstances are the exception among most partner visa applications. Certainly though you have a chance of getting it nonetheless.

My advice though is that you will need a whole lot of strong evidence in order to back up the application and don't just think that DIAC will grant you the de facto visa just because it's written on the DIAC site. Australia's immigration policy is among the toughest, if not the toughest in the world, and they are far from generous in granting visas.


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## jchrissy (May 31, 2011)

aussiegirl said:


> Hi again,
> 
> I have seen this FAQ before. I haven't, however, heard of or read of other people who had been granted a de facto visa in the same circumstances. Maybe your circumstances are the exception among most partner visa applications. Certainly though you have a chance of getting it nonetheless.
> 
> My advice though is that you will need a whole lot of strong evidence in order to back up the application and don't just think that DIAC will grant you the de facto visa just because it's written on the DIAC site. Australia's immigration policy is among the toughest, if not the toughest in the world, and they are far from generous in granting visas.


Hey again,

Yea, it's true! Coz basically I've been sponsored as a Spouse before, they're expectation will be higher than when I was applying as a spouse (base on married relationship). Well, the only reason I want to go back to Aus is because my partner lives here, if he's not Aussie I wouldn't even wanna try to get back here. I guess I just hope for the best hey?! Anyway, thanks for the information. Cheers


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## leoniewon (Jul 5, 2011)

has anyone had any experience in situations where the sponsor is still married but living separately?


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## aussiegirl (Dec 15, 2009)

Hi Leonie,

My husband was legally married when we met and when we had our wedding ceremony (it was not a legal ceremony, there were no papers signed). We finally registered our marriage legally just over a year ago. When the application was submitted, we were married, but we still explained the whole situation to show we were commited to each other even when he was legally married to his ex.

I have read that couples who are still in the same house can be legally classified as seperated under Australian law. It might take a lot to proove that, but it's possible. It all comes down to your relationship statements and those of your family and friends. So you need to explain when your relationship started, how did you feel when you knew the sponsor was legally married, what did the sponosr do and say to show the relationship was over, when did the relationship end in the sponsor's eyes, what made them feel this etc. It might get really personal, but this might be necessary to prove a point.


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## fyshtryker (Aug 22, 2012)

Hi Aussiegirl, first, my appreciation for the dedication in helping people like us who are confused and know not where to go, hearing things so different from one to another.

My Situation from you is sort of similar, only that, I am the sponsor Australian citizen and Legally Divorced, while my Fiance has been separated for over 3years now and the her Divorce papers has just been filed, she was advised that it could be finalised in the next 4-6 months.

I wanted to know if we can apply for PMV while her Divorce is on going, considering the fact that we have to satisfy 1 essential requirement wherein both parties should be free to marry. 

We've been in a long distance relationship for over 3years now, I've visited her twice in her country of residence and she came over in Oz once, and once we've met up in our country of birth.

Thanking you in advance and my appreciation for any input you can impart regarding our situation...

God Bless you for your Good Heart...


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## aussiegirl (Dec 15, 2009)

Thanks for your kind words 

It sounds like you and your partner really care for each other.

If you did apply for a pmv the problem I see is the need for you to be free to marry. This is also linked to having a wedding or ceremony arranged. I have read that celebrants allow ceremonies evrn when legally married if you can show when the divore is meant to be finalised. You would have to look at the website for marriage celebrants.

Also, even if you applied now I thinj it would be an incomplete app and so would not be processed until you gave them all required documents.


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## Vane (Mar 25, 2013)

Hi everybody,

I want to take advantage of this thread as it talks about divorce. I am applying for a 457 visa as a secondary applicant - it means sponsored by my boyfriend, who is a 457 visa holder, and now I don't know which documents I have to submit in order to prove I am divorced from a previous marriage in Spain, whether just the "divorce decree" from the spanish court would be enough or I must to submit an updated literal marriage certificate. I have in hand the divorce decree but not the other one. And, I'd like to know if it's necessary it document has the Apostille or is legalized.

Thank you very much


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## Nelly87 (Jul 3, 2011)

Just a general note on the thread, my personal take - what I would *think* is that DIAC does not expect people tk magically be in a perfect situation, but they want you to at least explain and prove the explanations to "the bad". The bad being things that make our cases less then clean cut glittery unicorn-rainbows perfect. I'd say one of the parties still being married to a third party would fall into that category.

What my gut feeling, after everything I've read, would say is just: if you have a good, concrete, clear explanation for it, why should it be an issue? If there is a good reason there is usually some kind of evidence for said good reason - and if the reason is indeed good, wouldn't the case officer then not make a larger than need be obstacle of it? 

That would kind of be like prosecuting someone for murder even if they have a solid alibi and a security tape proving someone else did it.


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## che_1361 (Aug 22, 2013)

Hi Aussiegirl...

The link to this thread has been given to me by a excellent moderator of this Forum. I am new here and for the past weeks I have been browsing and begging for help from everyone of my major confusion - exactly as what you have shared and ANSWERED here.

You're an Angel. Now I can breath a little knowing that my case "of being still married" has a fighting chance to have our De Facto Partners Visa [ w/c we plan to apply early next year] approved.

I hope many in this Forum who are similarly situated and confused will read your wonderful posts and find some comfort in it.

Big thanks.


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## che_1361 (Aug 22, 2013)

Hi xdorota...

I am new in this Forum hoping I'll get help and inputs on my situation. I'm a Filipino, married in the Philippines. I have not been living w/ my ex-wife for almost 5 yrs now though I periodically visit our family home { like once every 45-60 days ] for the sake of our son who is also living w/ her. I have filed a Divorce around 4 years in the USA w/c she did not contest and even signed the consent. In those Divorce documents our common property has also been settled. I still continue to send financial support for my son and my share of the household expenses but nothing in writing, only voluntary, afterall our son is already in his 20's.

Currently, I have a Fiancee, a Divorced Australian citizen. I knew and met her when we were still in our middle 20's, had a whirlwind romance but discontinued our relationship coz I was already committed with my ex. I have proof of this time when I first met my Fiancee. Fast forward, I got reconnected with my Fiancee 2 years ago. We're now in our 50's. She was also suffering a broken marriage [even before we got reconnected] and eventually Divorced her husband.

She sponsored me for a Fiancee Visa last year. It was disapproved on the grounds that my Divorce has no bearing since I am a Filipino citizen and therefore my marriage is still valid. [ Philippines has no Divorce Law.] They told me that I should get an annulment first before I can be approved of the Fiancee Visa. We were devastated then. All the sacrifices down the drain, not to mention the financial costs.

Now, my Fiancee/Partner and her minor daughter [of previous marriage] is living w/ me here in the Philippines. She resigned from her Australian job so we can live together for 12 months before she will sponsor me again for a De Facto Partners Visa this time early next year. We are preparing all the documentations necessary.

No doubt our relationship is genuine and true. We have sacrificed so much and have given up a lot. We both given up our jobs, relocate and established our new residence if only to make our dream come true - that.is- to be together forever.

Do you think we stand a chance to be successful in this 2nd try? I will value much your opinion and advise if any. Cheers !


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## kirstyeric (Sep 11, 2013)

Hi Forum, Just a quick question regarding marriage, My Fiancee Applied for 820/801 in 2011, He was and still is married to another person, we have tried and paid on several occasion for her to go to court in the US under her own to name to get a divorce, She either never turns up to the court case or doesn't file the right documents,My fiancée didn't want to leave me here pregnant at the time to do it, We have now completed and sent in our 2nd stage/801 forms, Our 2 year date is at the end of October and we are both flying to the states with our daughter in November to organize a divorce so we can get married , Do you think the immigration department could say no to his PR because he is married to someone else?, I am starting to get very concerned they will!, Thank you for any comments in advance.


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## che_1361 (Aug 22, 2013)

Chris McGrath said:


> I am worried about what you say re her current visa. You say she has overstayed her three months, is that correct? Then you say she is nearing the end of her 12 months period. Can you please explain what you mean by this. An ETA visa allows entry to Australia as mant times as the person wants in the life of the visa, but to stay no longer than 3 months on each entry. If you want to contact me privatelly I wil answer all your questions. I have 28 years experience as an Australian migration lawyer.
> 
> Applying as a defacto spouse is not affected by the fact that one or even both of the parties are currently married, so long as the couple are genuinelly living together. Immigration can waive the 12 months period that constitutes a defacto relation where there is a child of the relationship, or even pregnancy.
> 
> ...


Hi Mr. McGrath.

I just wanna thank you for expressing clearly your legal opinion as to the issue of "whether a Divorce/Annulment of an Applicant or Sponsor in a De Facto Partners Visa IS NECESSARY and / or REQUIRED." I believe it is your opinion that it is not necessary or required.

You see I started a Thread in this Forum on this very issue because it concerns me so much considering that I planned to apply said De Facto Partners Visa next year. My Australian citizen Partner who got her Divorce in Australia is also adamant of what is the take of DIAC on this because I am married here in the Philippines though I have separated from my wife for more than 5 years now.

Thank you so much. I am very sure many of us in this Forum are similarly situated.


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## navinda (Apr 29, 2014)

Hi Aussiegirl,

have there been any change to the below or is it still the same ?


It clearly states in PAM 3: DIV1.2/REG1.15A section 5 "Regulation 1.15A(2) - De facto spouse relationships" that it is possible to satisfy the criteria even though still legally married if they can satisfy the CO that they are permanently separated from that person. It also references section 11.3 as to what criteria should be met to show the de-jure relationship has ended. And it says, as I realised, in 11.3.3, 11.3.4 and 11.4.1 that there is nothing in regulation 1.15A that requires parties to divorce in order for the spouse relationship to have ceased and that they need only be living separately and apart on a permanent basis (as is the case for my partner).


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## Ninja69 (Oct 29, 2013)

Good day! 

I am applying onshore partner visa ( defacto) and in August 2014 we are on our 12 month of living together. We will apply online first week of September before my tourist visa expires third week of September 2014. I have talked to a lawyer in Philippines and he will expedite a paper signed by my ex filipino husband that we have been separated for 14 long years. The paper will be filed in books in the Philippines, sealed and signed by my ex husband myself and witnesses with lawyers signature. Is this document accepted by DIAC to prove that we have this document to prove that we are permanently separated? There is no Divorce in Philippines only annnulment and we could not afford to have one. 

Me and my Aussie partner have a genuine and continuing relationship until this point in time satisfying the four aspects needed to prove and include in our application. 

Hoing for your immediate reply on this matter.

Thank you,
Ninja 69


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## aussiesteve (Mar 16, 2012)

Ninja69 said:


> Good day!
> 
> I am applying onshore partner visa ( defacto) and in August 2014 we are on our 12 month of living together. We will apply online first week of September before my tourist visa expires third week of September 2014. I have talked to a lawyer in Philippines and he will expedite a paper signed by my ex filipino husband that we have been separated for 14 long years. The paper will be filed in books in the Philippines, sealed and signed by my ex husband myself and witnesses with lawyers signature. Is this document accepted by DIAC to prove that we have this document to prove that we are permanently separated? There is no Divorce in Philippines only annnulment and we could not afford to have one.
> 
> ...


Hi Ninja
If you are applying for a defacto visa it is immaterial if you are married or not, so don't go to a lot of effort.
All you have to prove is that you are in a genuine relationship for 12 continuous months.
Refer to the website below, it is very straightforward in the requirements.
http://www.immi.gov.au/media/fact-sheets/35relationship.htm
Good luck


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## Ninja69 (Oct 29, 2013)

Thank you aussiesteve &#55357;&#56835;&#55357;&#56397;


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## CollegeGirl (Nov 10, 2012)

aussiesteve said:


> Hi Ninja
> If you are applying for a defacto visa it is immaterial if you are married or not, so don't go to a lot of effort.
> All you have to prove is that you are in a genuine relationship for 12 continuous months.
> Refer to the website below, it is very straightforward in the requirements.
> ...


I don't think I'd say immaterial. There is a need to prove you've been separated. At least, that's my understanding.


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## aussiesteve (Mar 16, 2012)

CollegeGirl said:


> I don't think I'd say immaterial. There is a need to prove you've been separated. At least, that's my understanding.


I might be getting old CG but I can find no reference to seperation on the website


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## danegirl (Sep 15, 2013)

aussiesteve said:


> I might be getting old CG but I can find no reference to seperation on the website


"To the exclusion of all others"

Definition of de facto in the partner visa booklet.

So to prove you are in a de facto relationship, even before you get to the question of whether it has been for 12 months, you need to prove that you are not in a relationship with any other person. I.e, if OP is still legally married, she will have to prove her separation from her legal husband.


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## aussiesteve (Mar 16, 2012)

danegirl said:


> "To the exclusion of all others"


That only means that you can't be two timing, it does not ask for official proof of seperation. 
De facto literally means in place of the fact,in this case marriage. In Australia you can't legaly in be in a marriage with two people at once, like wise you can't be in a De facto relationship with more than one person.
I am not saying that providing the evidence would be detrimental, but rather I can see no where where it says it is mandatory.


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## CollegeGirl (Nov 10, 2012)

I've seen migration agents say it's absolutely essential to show evidence of separation from your previous partner. Now, this doesn't come up often enough that I remember what type of evidence was required - it might be that just a stat dec from the previous partner is enough -- I'm not sure. It's your call whether you think advice from reputable agents should be ignored or not just because something is on the DIBP website. Personally, I wouldn't risk it. There is a LOT of info not on the DIBP website.


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## Ninja69 (Oct 29, 2013)

Thank you guys for your different opinions. 

I have been separated for 14 long years and I can get like a Stat Dec from my ex filipino husband signed by him and witnesses with the lawyers seal and signature to prove that we are permanently separated. I believe DIAC will consider this because we do not have divorce in Philippines only Annulment which is expensive. 

I am in a genuine and continuing relationship with my Aussie Partner until now and can't wait to file my de facto partner visa onshore in September 2014. 


All the best, 
Ninja 69


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## chelsea14 (Jul 25, 2014)

Hi. I just want to ask help and opinion from all of you. My partner is still legally married but is separated for 2 years. He has a child with his previous relationship. I am applying for PR visa and I want to include him in my application. The problem is though they are already separated, the decision is not mutual. How can we prove that although the other party does not agree, they have really not lived as husband and wife for the past 2 years? And if I include my partner in my application, does he need to declare his child with the previous as non-migrating or is it ok to add under other family members? I doubt the mother would allow the child to undergo medicals since she is against separation. Me and my partner as a child as well. I hope you guys can give your opinion/advice on what to do. Thank you.


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## Adam Grey (Nov 8, 2013)

Re: separation. You cannot be legally married to two people at the same time, you cannot be in a de facto relationship with two people at the same time, but you can be legally married to someone and show you're in a de facto relationship with someone else.

"At the exclusion of all others" is important and of course if you're divorced, the marriage is dissolved or there's a legal separation those documents are great to submit. Alternatively you're stating the separation in the application form, in the statements and in the 'nature of the household' evidence. A statutory declaration/statement would also be beneficial to submit.

Chelsea - If the child is a dependent, even if they're not migrating with you they will need to undergo a medical.


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## chelsea14 (Jul 25, 2014)

Adam Grey said:


> Re: separation. You cannot be legally married to two people at the same time, you cannot be in a de facto relationship with two people at the same time, but you can be legally married to someone and show you're in a de facto relationship with someone else.
> 
> "At the exclusion of all others" is important and of course if you're divorced, the marriage is dissolved or there's a legal separation those documents are great to submit. Alternatively you're stating the separation in the application form, in the statements and in the 'nature of the household' evidence. A statutory declaration/statement would also be beneficial to submit.
> 
> Chelsea - If the child is a dependent, even if they're not migrating with you they will need to undergo a medical.


Thank you adam for the reply. If we cant get the child to do the medicals because of our current situation what will happen to my visa application? Will it be refused?


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## abdur rehman (Aug 26, 2015)

Chris McGrath said:


> I am worried about what you say re her current visa. You say she has overstayed her three months, is that correct? Then you say she is nearing the end of her 12 months period. Can you please explain what you mean by this. An ETA visa allows entry to Australia as mant times as the person wants in the life of the visa, but to stay no longer than 3 months on each entry. If you want to contact me privatelly I wil answer all your questions. I have 28 years experience as an Australian migration lawyer.
> 
> Applying as a defacto spouse is not affected by the fact that one or even both of the parties are currently married, so long as the couple are genuinelly living together. Immigration can waive the 12 months period that constitutes a defacto relation where there is a child of the relationship, or even pregnancy.
> 
> ...


Hii I want to talk with u privately


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## Huan (Nov 17, 2015)

*Help needed*

Hi everyone,

Looking for some clarification on sponsorship of my girlfriend for a partnership or marriage visa. I'm an Australia citizen, currently separated from my wife (the financial settlement has been completed) and the divorce date is set.

What I wanted to know was if the fact I am not fully divorced going to be an issue under the 12 month established relationship rule? My gf is Japanese if that makes any difference.

A bit of a timeline:

Feb15 - Separation from wife
Jun15 - Financial settlement completed/ Legal documents signed.
Jul15 - Gf moves into my house
Dec15- Gf working holiday visa ends.
Jan16- proposed 1yr student visa starts
Feb16- Divorce finalised in court.
Jul16- Apply for partner visa/marriage visa.

I guess what I wanted to check was that can the 12 month period start from when she moved in, or does it have to wait until the divorce is finalised?

cheers,
Huan


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## CCMS (Oct 10, 2013)

If you are going to apply on de-facto grounds, then it doesn't matter if your divorce has not been finalised.

Sent from my iPhone using Australia


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## chenzie (Feb 9, 2016)

*my partner refuses to lodged my visa*

hello everyone,

i am currently in tourist visa with my second husband, i was so stress cause he left me nothing, break my heart and leave me miserable even now
since i came back here in sydney he doesn't want to see me and currently living with friends, i am so depressed and don't know what to do. We just got married recently last November 2014 but before i left the country we already had a plan to lodge my spouse visa offshore, Unfortunately he changes his heart and split up with me after 2 months of being married. I came back here as a tourist and i couldn't believe what he done to me.. Before we get married we are living together for 2 years after i get divorce to my first husband,he made me believe that he loves me and just abused my love for him and after i gave everything he just dumped me like i am nothing and refuses to lodge my visa, i am now struggling and trying to survive here, I don't wanna go back to my country cause my life is here in australia even tho he ruined my life.

i just wish there is any other option that i can stay here and bring my life back without him..

please give me hope .


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## Maggie-May24 (Jul 24, 2011)

If you are eligible through a skilled visa, that's probably your best hope but you would need to have an occupation on one of the two DIBP occupation lists and have at least 60 points towards eligibility for the visa.

Unfortunately a lot of people simply aren't eligible for a visa and aren't able to remain.

You mention that you're on a tourist visa and that you're "trying to survive here". Your tourist visa does not allow you to work at all, so you should be careful not to be in breach of your visa conditions, otherwise your ability to get any future visa would be in jeopardy.


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## Kotipatiya (Nov 23, 2016)

*De facto Visa*

Hi all,

I included my de facto partner in my application.I'm still legally married to another person and our divorce case is processing at courts at the moment. I have a child from my legal marriage as well as a child from my de facto relationship. When I applied for the visa we have been living together for 3 years.

I received from my legal husband the consent to grant a visa to his child. (my 1st child). Now i have included my de facto partner and both children in the application. I need to know of the possible outcome.

Regards,

S


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