# can my partner file a divorce while his in Australia?



## 26777 (Dec 1, 2012)

hello !

me and my partner are confused on what we should do. hope there's someone that can help us on this. we would be much appreciated.

if my partner provide a statutory declaration or legal separation from an attorney in his country and he get granted for a visa to come back to Australia, is it possible for him to file a divorce while he is in Australia even though he is just on a temporary visa? Rather than filing an annulment in the Philippines? 

One of the immigration told me that applying on defacto grounds is not a big deal if your partner is still legally married overseas because being in a defacto relationship does not require us to get married. but we want to show proof that he is separated with his wife for a long time and cause he wants a divorce so we can get married in the future.


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## louiseb (Dec 22, 2012)

Hello bemmy
I had tried this in Australia in 2010, i was still legally married ( as at the time in Malta Like the Philippines there was no such thing as divorce). I actually paid the $450 dollars at the court, i had a date before the judge, i was told that because i was on a visitors visa( 3 months ) the judge wouldn't grant the divorce even though i tried to explain to her both Kevin and i wanted to get married. The main issue was i was only on a visitors visa so you may find that courts will allow it. The judge had said that if i here on a longer visa then it wouldn't have being a problem for her to issue the divorce. 
In Malta even a legal separation takes years to complete, and now we have the divorce it takes even longer, so if he can get a divorce in Australia its quicker month and 1 day if i remember correctly. This was in 2010 and things may have changed since then so please do check on this.

good luck
Louise


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## Aussieboy07 (Jan 4, 2013)

Hi Bemmy
To divorce in Australia

You can apply for a divorce in Australia if either you or your spouse (wife):

•regard Australia as your home and intend to live in Australia indefinitely, or
•are an Australian citizen by birth, descent or by grant of Australian citizenship, or
•ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

Note if you have children from the marriage you will need to attend a court but if no children you can do it all online

Divorce


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## Aussieboy07 (Jan 4, 2013)

How do I apply for a divorce?


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## louiseb (Dec 22, 2012)

Aussieboy07 said:


> Hi Bemmy
> To divorce in Australia
> 
> You can apply for a divorce in Australia if either you or your spouse (wife):
> ...


Hi Aussyboy, i fell into all these categories and i received the divorce pack filled them out and sent them to my (now x) husband, he had his lawyer sign and agree 100% that we had lived apart for 4 years and he had resettled with his new partner, for once he was working parallel to me he wanted this divorce more than i, still the judge didnt grant me the divorce, she said because i wasnt living in Australia and i was on a visitors visa ( months) she couldnt grant me the divorce, we had everything signed and filled out by his lawyers and mine and still it was the fact of the visa that stopped me. She actually told us that until i was granted a visa to remain in Australia she wouldn't even reconsider giving me the divorce lol. I maybe got a hard judge that day.


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## Aussieboy07 (Jan 4, 2013)

louiseb said:


> Hi Aussyboy, i fell into all these categories and i received the divorce pack filled them out and sent them to my (now x) husband, he had his lawyer sign and agree 100% that we had lived apart for 4 years and he had resettled with his new partner, for once he was working parallel to me he wanted this divorce more than i, still the judge didnt grant me the divorce, she said because i wasnt living in Australia and i was on a visitors visa ( months) she couldnt grant me the divorce, we had everything signed and filled out by his lawyers and mine and still it was the fact of the visa that stopped me. She actually told us that until i was granted a visa to remain in Australia she wouldn't even reconsider giving me the divorce lol. I maybe got a hard judge that day.


No not a hard judge it was the fact that a visitors visa does not provide evidence that you intend to make australia home, quite the opposite actually. Bemmy you may want to check into some free legal services or give this web site a go
Northern Suburbs Community Legal Centre Inc


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## 26777 (Dec 1, 2012)

Aussieboy07 said:


> Hi Bemmy
> To divorce in Australia
> 
> You can apply for a divorce in Australia if either you or your spouse (wife):
> ...


Hey Aussieboy

from what i understand is that if my partner got his partner (defacto) visa granted, will that mean he will be able to file a divorce in Australia after living here for at least 12 months? i don't quite understand the last dot point. He regard Australia as his home and he want to live with me in Australia permanently. We want to be together as a family and its also because we will have a baby coming in March. should he apply for partner visa subclass 100? or apply the subclass 309?

and i've been also searching some information about an annulment in the Philippines. i'll just quote it here.

_Philippine laws do not recognize divorce, all divorces secured abroad are not valid in the Philippines. It follows that all second marriages contracted by Filipino citizens following divorces secured abroad were likewise invalid in the Philippines.

In the Philippines, a marriage annulment requires that Filipinos who have obtained a divorce outside the country still must obtain an annulment within the country of the Philippines_

so even though he files a divorce in Australia, he still needs to file an annulment in the Philippines? if that's the case then maybe he should only file an annulment in the Philippines but it's expensive and the process takes months to find out results.


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## Aussieboy07 (Jan 4, 2013)

bemmy.x said:


> Hey Aussieboy
> 
> from what i understand is that if my partner got his partner (defacto) visa granted, will that mean he will be able to file a divorce in Australia after living here for at least 12 months? i don't quite understand the last dot point. He regard Australia as his home and he want to live with me in Australia permanently. We want to be together as a family and its also because we will have a baby coming in March. should he apply for partner visa subclass 100? or apply the subclass 309?
> 
> ...


I can not advise on which visa to apply for as i am not sure he is eligible to apply for either ie visa 300 requires you to marry within certain timeframes and i am thinking it would be hard to prove that you are mutually exclusive, when he is in the philippines and married to a filipino for visa 100. I know to apply for visa 309 you need to produce a CENOMAR (certificate of no marriage), i would think that you would also need to do that for visa 100. Maybe Mark Northam can advise on this one especially the visa 100. I am definitely not a migration agent

Regarding the divorce, from what i understand he would need to live in Australia for 12 months prior to the divorce (hence ruling out visa 309). I as an Australian citizen divorced my filipino wife and this is recognised if i wish to marry in the philippines.

It really does not matter what the philippines recogise as long as if he wishes to remain in australia and marry in australia then a divorce in Australia is legal. There are many free (or just for a couple of dollars) legal advice centres that you can go for inital advice.


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## louiseb (Dec 22, 2012)

bemmy 
Malta and the Philippine laws on separation and divorce are the same or lets say they were as now Malta is free to divorce but not without 4 years of legal separation from the courts. These were the last two countries in the world not to recognize divorce, now the Philippines stands alone.
if you wish to get a spouse visa (Subclass 309, partner visa) or a fiancee visa (Subclass 300, prospective marriage visa), then she must be legally free to marry. The only exceptions are for those who have been in a de facto partnership for 12 months or more.


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## louiseb (Dec 22, 2012)

Aussieboy07 said:


> No not a hard judge it was the fact that a visitors visa does not provide evidence that you intend to make Australia home, quite the opposite actually. Bemmy you may want to check into some free legal services or give this web site a go
> Northern Suburbs Community Legal Centre Inc


hi aussyboy, i was on a visitors visa coming and going every few months actually i came back and forth 5 times in 9 months , as far as evidence goes your right it doesn't show my commitment to Australia but having a house in our name, and having bank accounts in my name as well as utility bills shows my commitment to Australia, investing thousands of dollars in Australia should be strength alone, i am and was committed to Australia especially financially, i would have thought the judge would hav taken this into consideration, lol i was wrong, but she made the choice and i had to obeye her orders. Thats when we packed up and came to Malta.


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## 26777 (Dec 1, 2012)

louiseb said:


> Hello bemmy
> I had tried this in Australia in 2010, i was still legally married ( as at the time in Malta Like the Philippines there was no such thing as divorce). I actually paid the $450 dollars at the court, i had a date before the judge, i was told that because i was on a visitors visa( 3 months ) the judge wouldn't grant the divorce even though i tried to explain to her both Kevin and i wanted to get married. The main issue was i was only on a visitors visa so you may find that courts will allow it. The judge had said that if i here on a longer visa then it wouldn't have being a problem for her to issue the divorce.
> In Malta even a legal separation takes years to complete, and now we have the divorce it takes even longer, so if he can get a divorce in Australia its quicker month and 1 day if i remember correctly. This was in 2010 and things may have changed since then so please do check on this.
> 
> ...


hey Louise 
i feel sorry for you... i didn't even know that Malta does not recognized divorce that time. it sucks that Philippines stands alone now. I wonder when they will change the laws there. and yeahh the divorce does not take long to process like an annulment in the Philippines.

Do you know if you can file an annulment and find out the results without waiting for so long? usually an annulment takes 6 months or a year to process but what if you want to find out the results within under 6 months, is that possible?

with your other comment you posted, i'd like to say that we've only been living together for 3 months because he had to return home to his country. we are going to waive the 12 months living together requirement because we are going to have a child.

_you can establish that there are compelling and compassionate circumstances for the grant of the visa, such as you have children with your partner_

i quoted that off from the partner migration booklet.


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## louiseb (Dec 22, 2012)

bemmy.x said:


> hey Louise
> i feel sorry for you... i didn't even know that Malta does not recognized divorce that time. it sucks that Philippines stands alone now. I wonder when they will change the laws there. and yeahh the divorce does not take long to process like an annulment in the Philippines.


 Malta had a referendum in 2010 and it was accepted BUT with many rules, only after a person/couple have being legally seperated through the courts for 4 years can they then apply for a divorce which takes 1 year, they say its less but it isnt,



> Do you know if you can file an annulment and find out the results without waiting for so long? usually an annulment takes 6 months or a year to process but what if you want to find out the results within under 6 months, is that possible?


 i wouldnt say so as the results would only come through when the court decides on the annulment, its a little like applying for a visa its somewhat a little slow and there is nothing we can do to hurry the process.



> with your other comment you posted, i'd like to say that we've only been living together for 3 months because he had to return home to his country. we are going to waive the 12 months living together requirement because we are going to have a child.
> 
> _you can establish that there are compelling and compassionate circumstances for the grant of the visa, such as you have children with your partner_
> 
> i quoted that off from the partner migration booklet.


 i dont know the actual details of compassionate circumstances for your case but try seeking professional help, if Mark see,s this he can maybe help you on this one. Im not sure if your application or right to file for divorce would be quicker due to the CC,s sorry.

Good luck to you both
Louise


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## Aussieboy07 (Jan 4, 2013)

Yeah i know it sounds harsh but if you think of other individuals/companies from overseas eg japan who invest millions of $ in property with the sole purpose of making money, it kinda makes sense and i will stop there.


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## Dally (Oct 10, 2013)

Hi there, 
I have a query about the divorce. I am on spouse visa since 5 years now but we haven't got the residency yet. 
Me n my husband actually lived desperately for 2 years than we lived together. Things aren't going well btwn us but still I have no choice than to live in same house with him. 
Since we got our marriage certificate from back home, can we get divorce paper from back home and submit in immigration? I know soon after I do that I can not stay more than 30 days n need to get visa to stay here. 
My another situation is can I apply for prospective marriage visa with my boyfriend soon after I get my divorce? 
Your advice would be very mush appreciated 
Dally


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## GBP (Jun 1, 2013)

Dally said:


> Hi there,
> I have a query about the divorce. I am on spouse visa since 5 years now but we haven't got the residency yet.
> Me n my husband actually lived desperately for 2 years than we lived together. Things aren't going well btwn us but still I have no choice than to live in same house with him.
> Since we got our marriage certificate from back home, can we get divorce paper from back home and submit in immigration? I know soon after I do that I can not stay more than 30 days n need to get visa to stay here.
> ...


I think divorce doc from your home country is acceptable just like they accept your marriage cert from your home country.

PMV is an offshore application, there is no onshore version. You will have to go offshore to apply (most likely from your home country) and maybe able to apply for a tourist visa to come back to Aus while waiting for a decision.


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## Dally (Oct 10, 2013)

GBP said:


> I think divorce doc from your home country is acceptable just like they accept your marriage cert from your home country.
> 
> PMV is an offshore application, there is no onshore version. You will have to go offshore to apply (most likely from your home country) and maybe able to apply for a tourist visa to come back to Aus while waiting for a decision.


Thanks GBP, 
I won't mind to go home and apply, me n my boyfriend are planning to visit my parents. Do you think I can apply for PMV soon after I get my divorce ? Or you think it's too soon? 
Dally


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## CollegeGirl (Nov 10, 2012)

Dally, I explained this (I thought) yesterday to you. Yes, you have to be completely legally divorced for someone else to sponsor you for a PMV. It is offshore-only, as GBP said. And I would NOT file for it right away, if I were you. When are you going to tell immigration you met each other and started dating and fell in love? If you tell them you did that while you were married to someone else and *legally required to notify Immigration* if your relationship with your spouse broke down, and you didn't do that, you're admitting to them that you've breached the terms of your previous spouse visa. Why would they then grant you another one? You really, really need the advice of a registered migration agent on this one. Mark Northam on this forum is very good. His website is mnvisa.com.


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## Dally (Oct 10, 2013)

Hi CollegeGirl, 
Ya I got your point but I won't give up now. I have contacted Mark if nothing workout I am planning to get short term student visa. 
Thanks all of you for your advised


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## CollegeGirl (Nov 10, 2012)

Good, I'm glad you've contacted Mark.  Best of luck!


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