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A partner visa allows you to remain in Australia if you are in a spousal or de facto relationship with an Australian citizen, an Australian permanent resident or an eligible NZ citizen. However, these relationships sometimes break down, causing anxiety for the partner visa holder. This article will explain your options if you are on a partner visa and your relationship with your Australian spouse or de facto partner has ended.

Informing the Department of Home Affairs

If your relationship with your partner has broken down, you must inform the Department of Home Affairs. You must complete Form 1022, “Notification in Changes of Circumstances”, and return in one of the following methods:

  1. via email;
  2. via the online contact form; or
  3. via your online ImmiAccount.

In certain circumstances, you may be eligible to remain in Australia, and you will need to apply to do so with the Department. 

Remaining in Australia

If you are in this situation, you may still be eligible for a permanent visa despite the breakdown of your relationship if:

  1. you have experienced family violence from your sponsor during your relationship;
  2. you have a child of the relationship; or
  3. your sponsor has died. 

If the above circumstances do not apply, you may still be able to remain in Australia by applying for an alternate visa. 

Family Violence

The family violence provision was introduced to ensure that partner visa holders do not feel compelled to remain in violent relationships to maintain their visa status in Australia. 

Family violence is any conduct, whether actual or threatened, that causes you to be fearful or apprehensive about your own wellbeing or safety. This is not limited to physical violence and may also include amongst other things:

  • psychological and emotional abuse;
  • financial abuse;
  • controlling and manipulative behaviour;
  • threatening behaviour; and
  • damaging property.

This provision also extends to violence against your or your partner’s dependent child. 

For this provision to apply, you must show that the relationship between you and your sponsor has broken down. Additionally, if you continue to live together, you must be able to prove that the spousal or de facto relationship has ceased. If the Department of Home Affairs is satisfied that your relationship with your partner was genuine before the breakdown and you were subject to family violence, you will be granted a permanent visa, provided that you meet other health and character requirements. 

Evidencing Family Violence

Although you do not need to prove that the relationship ended because of family violence, the violence must have occurred before the relationship ended. For subclass 309 Temporary Partner Visa holders, the family violence must have occurred after you arrived in Australia. 

The Department may require you to prove that your relationship was genuine and continuing before this breakdown occurred. Once they have assessed this, they will consider your claim of family violence. 

There are several documents you could use to evidence the family violence, which fall under two categories:

  • judicial evidence; and
  • non-judicial evidence. 

1. Judicial Evidence

Judicial evidence is any evidence that a court has previously considered and has resulted in a court order. For example, judicial evidence may include:

  • evidence that the perpetrator has been convicted or found guilty of an offence against you; 
  • an injunction made by a court against your ex-partner;
  • a restraining order; or
  • a protection order. 

2. Non-Judicial Evidence

Non-judicial evidence is evidence from other sources that have not been presented to or considered by a court in the past. For example, non-judicial evidence may include:

  • medical or hospital reports; 
  • social worker or psychologist reports;
  • police reports or statements;
  • letter from a women’s refuge or family or domestic violence crisis centre; or 
  • letter from a school counsellor or school principal. 

If you provide non-judicial evidence, you must have at least two pieces of evidence from the above list from two separate professionals or organisations. In addition, a statutory declaration from you must accompany this. 

Where you present judicial evidence, the Department must accept that family violence has occurred. In contrast, if you present non-judicial evidence, it is up to the Department to determine whether family violence has occurred. In this respect, judicial evidence is given greater weight. 

If the Department determines that family violence has occurred, they will grant you a permanent visa. In some cases, based on your non-judicial evidence, the Department will not be satisfied that family violence has occurred. In that case, they may refer your matter to an independent expert. The independent expert will make a determination after inviting you for an interview. The Department will accept the decision of the independent expert. Therefore, if they find that family violence has not occurred, the Department will likely refuse your permanent visa application. 

Child From the Relationship

You may still be eligible for a permanent visa if you have joint custody arrangements with your ex-partner, or if your ex-partner has financial maintenance obligations towards your child. However, you will need to establish that you have parental rights in respect of the child. Examples of evidence you may provide in this situation include:

  • your child’s birth certificate, naming both parties are parents of the child; or
  • a court order concerning parental rights or custody arrangements. 

Your Sponsor Has Died

You may also still be eligible for a permanent visa if your partner has died, and you can evidence that the relationship would have continued had your sponsor not died. For the subclass 820 / 801 visas or the subclass 300 visa, you may also be required to prove that you have developed close business, cultural or personal ties within Australia. 

Applying for an Alternate Visa

If none of the above circumstances applies to your situation, you will need to apply for an alternate visa if you wish to remain within Australia. The visa pathways that are available to you will depend on your individual circumstances. However, we recommend that you receive legal advice to determine the best pathway for your situation. 

Key Takeaways

You need to inform the Department of Home Affairs if you are on a temporary partner visa and your relationship with your spouse or de facto partner breaks down. You may still be eligible for a permanent visa despite the relationship ending. The Department will make special concessions if you have experienced family violence, have a child from the relationship or if your partner has died, provided that you can evidence these circumstances. If you would like to discuss your options, contact our LegalVision’s expert immigration lawyers on 1300 544 755 or fill out the contact form on this page. 

Frequently Asked Questions

The Department is not satisfied that family violence has occurred based on my evidence. What happens now?

The Department may decide to refer your application to an independent expert to determine if family violence has occurred. The independent expert will likely invite you to an interview.

My relationship with my Australian spouse/de facto partner broke down, and I do not qualify for any exceptions. What should I do?

In this case, you should consult an immigration lawyer to determine your options for alternative visas.

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