Even if one party is still married to their ex-partner, a partner visa with a new spouse/partner is still possible.
Whilst the requirement of the partner visa is that the spousal or de facto partner relationship be ‘mutually exclusive’, the partner visa can still be granted if one party remains married to their ex-spouse/partner. The partner visa can still be granted if one has not divorced their ex-spouse yet. The situation can be complicated and it requires a professional to assess the situation and advise of the best pathway forward. We recently received this case and we miraculously obtained a partner visa grant within 6 weeks. The Sponsor of this case claims to have separated from his ex-wife for many years but failed to obtain a legal divorce to protect the interests of their young child.
The Sponsor claims to have separated from his ex-wife many years ago and did not obtain a legal divorce as they did not want their young child to know. The Visa Applicant was the same but was able to obtain a legal divorce recently.
We had advised the client the specifics of the legal requirement and that nothing prevented a partner visa to be granted to them as a result of their new relationship. However, we did advise the Sponsor to obtain a legal divorce soonest possible.
Nevertheless, without any further request for supporting evidence from the Department, we again achieved the partner visa for our clients in record speed (6 weeks). The Sponsor did not even have to finalise his divorce yet.
We got them the partner visa granted within 6 weeks.
Difficulties with this case
Many people will be advised that they must be in an exclusive relationship for the partner visa so if they are still married to another person the partner visa will not be successful. However, the case officer is required to look at the circumstances of the case to determine whether ‘exclusivity’ can be met. As such, even if one or both parties are still married to their ex-partners, the partner visa can still be granted.
The case of Cabsari (Migration)  AATA 1432 (13 May 2021) addresses this. A summary of this case is available here: Polygamous marriages within partner visas
In this case, we prepared legal submissions for the Sponsor and the Visa Applicant to address the reasons in the delay for the Sponsor to obtain a legal divorce with his ex-wife and how the relationship between the Sponsor and the Visa Applicant is indeed genuine, continuing and exclusive.
A very thorough application was prepared on our client’s behalf and the Department accepted their case without further questions. Consequently, their partner visa was granted within 6 weeks.
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