If you are a migrant partner or spouse or you are a sponsoring partner, do you understand what happens or what can happen when a relationship or marriage breaks down before the permanent visa has been granted? What are the rules and what are the options?
Note: advice given here is a very brief summary of complex rules. All circumstances are different and we will require a discussion on yours to give advice that is appropriate.
Generally speaking, if a marriage or relationship breaks down before the permanent visa has been granted, there are very few options for the migrant partner to remain in Australia. However, there are significant options that the migrant partner should be aware of. These are listed below.
Options available for migrant partners who have not yet got their permanent visa:
The family stream visas that the family violence provisions are applicable to include:
Relevant family violence is defined as:
‘Conduct, whether actual or threatened, towards:
that causes the alleged victim to reasonably fear for, or be reasonably apprehensive about, his or her own well being or safety.’
Relevant family violence is not limited to physical harm. It may also include other forms of abuse, such as psychological and/or financial abuse, which is consistent with the above definition.
The definition applies to both female and male migrant partners. Male applicants can qualify just as much as female applicants. Ask us for examples of successful applications for these.
If your marriage or relationship breaks down and you do not intend to continue it, you need to advise the Department. Once you do this, you have no further role in your former spouse or partner’s visa process, and you are not entitled to any information about it. Privacy rules prevent any further contact with you by the Department.
However, there are some significant matters that you need to be aware of. The options available for your former partner/spouse are listed below, and you must be aware of these. In particular, you should be aware of potential risk of a claim of family violence (called domestic violence in other forums). In some cases, this will be a claim made only to DIBP, and you will never hear about it from them. They will make a decision based on any evidence your former partner/spouse may provide. In real terms, there is no impact on your life publicly, as the claim is for immigration purposes only and is not used in any other forum.
In other cases, there could be a claim in a Court against you for Family Violence. This is a very serious situation, and you need urgent legal advice.
There could, of course, be follow on effects if your former partner/spouse makes property or other financial claims against you; however, this is outside immigration law. If you are certain that there is no valid argument that can be made about you committing family violence, then there is a good case for providing the Department with information about why the relationship ended. This is permitted; however, you will not receive any comment or questions back from DIBP, simply an acknowledgement. Note the definition of family violence below and that it does not have to include physical violence. If you are a sponsor and your relationship is ending or ended, we recommend that you
contact us urgently for advice.
The process of proving family violence has occurred can be complex, lengthy, and very challenging. It happens when the migrant partner may be in a very difficult state emotionally. A person in this situation needs all the help they can get, emotionally but also to manage the process of immigration. Several avenues are available to migrant partners who believe they have been exposed to family violence.
This is a very challenging and sad aspect of migration. We have the experience needed to assist with the immigration aspects and the contacts to help you deal with the emotional and sometimes the financial aspects of the relationship breakdown.
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