What if you and your Australian partner break up after permanent residency is granted? You have permanent residency through a partner visa, the application of which requires that you must continue to meet the relationship requirements.
Please note that the information we provide in this article is current as at the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates, or speak with immigration lawyer for the most up-to-date information as laws are subject to change.
In a permanent partner visa application, immigration laws require that you must continue to be the spouse or de facto partner of the same person who sponsored you for the temporary partner visa.
This means that you must continue to be in a marriage or de facto relationship and have a genuine and continuing relationship. Moreover, you must live together (not permanently apart), and must be mutually committed to a shared life excluding other partners.
But what happens if you break up after permanent residency is granted? This article discusses matters under this topic related to Immigration Law.
Break up After Permanent Residency Is Granted
If you have obtained the Permanent Partner Visa (Subclass 801 or 100) and the relationship breaks down after the visa grant, your permanent visa will remain in place. You do not need to do anything. The grant of your permanent partner visa will not change any conditions even after the relationship ends; the visa will continue to be valid as normal.
After obtaining permanent residency, the applicant will be a permanent resident of Australia; therefore, it will not affect the visa. Hence, a break up after permanent residency is granted will not give your ex-partner the right to have your visa cancelled or have you leave from Australia.
What if I Am on a Temporary Partner Visa?
Under Australia’s immigration laws, migrants already granted permanent residency through partner visas cannot have their visa cancelled due to a subsequent break up. A break up after permanent residency is granted will not lead to a cancellation of the visa.
However, it is crucial to note that if the break up occurred before you had permanent visa, the DHA will cancel the application and refuse the visa. The rules are different as opposed to a break up AFTER permanent residency is granted.
In this case, you have to inform the Department of Home Affairs (the Department or the DHA) about your break up. It is a condition of your visa that you inform the Department of changes in your situation as soon as you can.
In such circumstances, the Department may contact the applicant’s spouse and ask them to formally withdraw their sponsorship. However, permanent residency may still apply despite the relationship breakdown if:
- The applicant is a victim of domestic violence;
- The applicant and the former partner share a child; or
- The applicant’s spouse or de facto partner has passed away.
Break up as a Result of Family Violence
You do not need to remain in an abusive relationship in order to stay in Australia. The Australian Government has no tolerance for domestic and family violence against any person, including permanent and temporary visa holders.
If you have suffered family violence and are no longer in a relationship with your sponsor, you may be eligible under the family violence provisions under immigration laws.
If you, or any member of your family, experiences violence at the hands of your ex-partner, you may still be eligible to stay in Australia. You can apply for consideration for grant of permanent residency.
Steps to apply for consideration on grounds of family violence:
- Notify the Department. When applying for consideration, you will first need to notify the Department of when your relationship ceased with your former partner, and your experience with domestic violence with that partner.
- Relationship assessment. Before the Department assesses your claim of family violence, you must also prove that you were in a genuine and ongoing relationship with your former partner, prior to your relationship ceasing. Hence, they may ask you to provide evidence on your relationship such as financial aspects, household and domestic arrangements, or social aspects of the relationship.
- Family violence evidence. You will then receive a request to provide evidence of the family violence. The family violence evidence must demonstrate that the violence occurred while you were in a relationship with your former partner and that the alleged perpetrator was your former partner and sponsor. You can provide either judicial evidence (a document from a court of law) or non-judicial evidence (such as medical and hospital reports or assessment reports from a domestic violence crisis centre).
Break up and Shared Parental Responsibility
If you and your former partner have a child or children from the relationship, you may still be eligible for permanent residency. For this to be applicable, you must have shared parental responsibility, and the custody of the child or children must be joint custody or both parents must have joint access to children.
This also requires specific evidence to support it. Hence, it is mandatory to inform the Department of the changes in the relationship so that they do not cancel your visa and you may proceed with the permanent stage.
Death of the Partner
If the relationship ended because your partner died, you may still be eligible to stay. However, you have to prove to the Department that the relationship would have continued if your partner had lived.
Knowing Your Legal Rights
It is crucial that you are aware of your partner visa rights. These rights include the following:
- Your former partner cannot cancel your visa. The only person who can reject your visa application is the case officer who assessed your application; your former partner cannot do so.
- Your right to respond. If your former partner or spouse informs the Department about the relationship breakdown, the Department will send you a letter, most likely through email. From the day you receive the letter, you will have 28 days to respond to their enquiry. Failing to comply with this condition may lead to the cancellation of your temporary visa without any notice.
The Importance of Seeking Legal Advice
Every situation is different. If you have already obtained permanent residency and you break up after permanent residency, your partner cannot cancel your visa. This is because a permanent partner or spouse visa is permanent.
However, if you are still on a temporary visa, as discussed above, there are circumstances that may allow you to stay permanently in Australia. However, you must prove all claims for consideration. Or perhaps you broke up and have children, but you are on a Prospective Marriage Visa Subclass 300. It is highly advisable to speak with an immigration lawyer regarding these matters.
JB Solicitors has a leading team of experienced lawyers that can help with your specific situation. We can assess whether you are eligible under any of the grounds we’ve mentioned above, or advise you on other visa options to stay in Australia.
Do you have any more enquiries? Contact us today.
