If you are in Australia under one of several kinds of partner visa, whether you can stay if your relationship breaks down will depend on the status of that visa and potentially some other life circumstances. But there are two things you must do right away. First, you must notify the Department of Immigration and Border Protection that your relationship has ended. Second, you should get competent legal help. Notwithstanding the brief summary that follows here, Australian immigration law is extremely complex, and small distinctions may make all the difference.

What is the status of your visa?

As a general rule, you can obtain a partner visa if you are in a married or de facto relationship with your sponsoring partner, who is an Australian citizen, Australian permanent resident or a New Zealand citizen. After a visa application is submitted, the Immigration Department will first grant a temporary visa and two years later you would be eligible for a permanent visa. The entire process, with waiting times included, may take from three to four years. A lot can happen in a relationship during that time.

Whether you can stay in Australia if and when the relationship sours will depend, in part, on where in the process you were. To state the obvious, you have likely lost your sponsor.

If you have been granted a permanent visa, either as a married spouse or a de facto partner, your chances of being able to stay in the country are promising. Permanent means permanent, usually. If the Immigration Department determines that there was never a bona fide domestic relationship, however, even a permanent visa may be revoked.

If you have been granted a temporary partner visa (sometimes called an 820 visa) or a provisional visa (also referred to as a 309 visa), your ability to stay in the country may depend on other factors discussed below. Otherwise, you may be advised to withdraw your visa application or your application may be denied.

If you have not yet lodged an application for a partner visa, you may be asked to leave within a relatively short period of time unless you are eligible for another kind of visa.

Remember, however, that each situation is unique and individual circumstances may be dispositive. That is why expert advice is so important.

Family violence

No one is required to stay in an abusive situation to protect their immigration status. A migrant on a temporary or partner visa has the same rights under the Family Law Act 1975 as an Australian citizen.

Family violence is defined under the Migration Regulations as conduct, either actual or threatened, towards the alleged victim or a family member or towards property belonging to the victim or a family member. The conduct must cause the victim to reasonably fear for their safety or wellbeing. It can include physical or psychological abuse or harm, forced sexual relations, forced isolation or economic deprivation

The Department will request for evidence of domestic violence including:

  • Final Apprehended Violence Order;
  • Photographs;
  • Police reports;
  • Court orders; or
  • Social worker report; or a doctor’s report.

Shared parenting responsibilities for an Australian citizen child

If you and your partner have a child who is an Australian citizen and under the age of 18, and you have a temporary partner visa and you share parental responsibility for the child, you may also qualify for a permanent partner visa.

Death of partner

If you can satisfy the Immigration Department that the relationship would have continued if your sponsoring partner had not died, then a permanent visa may be granted. However, there is an additional requirement that an applicant must prove that he or she developed strong cultural, personal or business ties to Australia. The Department may issue a permanent partner visa straight away instead of first issuing a temporary visa and then making the applicant wait two more years before the visa is converted to a permanent one.

Depending on the status of your visa and other life circumstances, you may be able to stay in Australia even if your relationship breaks down, but it may not be easy. The attorneys at Owen Hodge Lawyers would be happy to assist you. Please call us to schedule a consultation at 1800 770 780.