Please note that the information we provide in this article is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates, or speak with an immigration lawyer for the most up-to-date information as laws are subject to change.
Did you and your partner break up after permanent residency is granted? This break up in particular not only ruins just one’s emotional and mental state, but future plans with your partner as well. A person can obtain permanent residency if they have a partner visa (820/801, 309/100 and 300). Hence, people might think that if a break-up happens, they might lose it.
So how does a permanent partner visa application work? 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. 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?
Does the DHA Need To Know About My Breakup?
Naturally, after a break up, people will reach out to their friends and family about it. However, the person will need to reach out to the Department of Home Affairs (DHA) about the break up. Before they contact the department, they should complete Form 1022.
A person can use this form if there are changes in their circumstances that affect their visa application. After they fill-up the form, they can send it to the DHA via:
- ImmiAccount
- The online contact form
You can also check out this questionnaire to learn more about changes in your relationship
Break up After Permanent Residency Is Granted
Did you obtain the Permanent Partner Visa (Subclass 801 or 100) and are you worrying about your relationship breaking down after the visa grant? Good news! Your permanent visa will remain in place and 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 and 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 get your visa cancelled or get you to leave Australia.
Break up While on Partner Visa
We have discussed what happens when you and your partner break up after permanent residency is granted. But what if it happens before a person receives permanent residency while on a partner visa?
Let’s look at the requirement of a partner visa first. A person who wants to become a permanent resident in Australia must be in a genuine relationship with:
- An Australian citizen
- A Permanent resident; or
- An eligible New Zealand citizen
The people who meet the criteria above are the people who will help or “sponsor” their partner live in Australia. Now, if the relationship ends, they have to end their sponsorship obligations for their ex-partner.
If this is the case, the person seeking permanent residency should still inform the DHA of the breakup. The DHA will assess how long the relationship was and the reason for the breakup. While this situation may seem grim, Australian laws may save a visa applicant from such bad outcomes.
Break up as a Result of Family Violence
The Australian Government has no tolerance for domestic and family violence against any person, including permanent and temporary visa holders. Parties involved in partner visa matters are still de facto partners. Hence, a person who suffered domestic violence from a partner is still eligible for family violence provisions.
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. Here are the steps to apply for help for domestic break up after permanent residency is granted situations.
Steps to apply for consideration on grounds of family violence:
1. Notify the Department: Do you want to apply for consideration for breakup due to family violence? Then you will first need to notify the Department of when your relationship ceased with your former partner. Make sure to state your experience with domestic violence with that partner.
2. Relationship assessment. The Department will then assess your claim of family violence. Next, you must prove that you were in a genuine and ongoing relationship with your former partner, prior to the break up. They may ask you to provide evidence of your relationship such as:
- Financial aspects
- Household and domestic arrangements; or
- Social aspects of the relationship
3. 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 perpetator 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).
Things to take note of while you provide evidence for break up after permanent residency is granted situations:
- Make sure to find any history of family violence from your partner
- Download Form 1410i. This is an important form to read to identify domestic violence evidence.
- It’s important to seek help from relevant authorities who can assess domestic violence evidence. This may include doctors, police, psychologists, family/relationship counsellors and child welfare officers (if children are in the relationship).
Read: Domestic Violence Lawyer | Family Violence Lawyer & AVOs
Break up After Permanent Residency Is Granted: Parental Responsibility
If you and your former partner have a child or children from the relationship, you may still be eligible for permanent residency. This also requires specific evidence to support it since Australian family law gives weight to various factors before making legal decisions related to children so as to ensure the protection of their best interests. 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 maintain your permanent residency.
What if the Sponsor Passes Away?
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. However, there are different conditions for onshore and offshore visa applicants and prospective marriage visa applicants:
Onshore Applicants (Partner Visa 820/801):
To remain eligible for permanent residency you must demonstrate that:
- You and your partner would have continued the relationship had they lived
- Due to your relationship, you have developed strong business, cultural, and personal ties to Australia
Offshore Applicants (Temporary Partner Visa 309):
You only have to prove that your relationship with the sponsor would have continued had they lived.
Prospective Marriage Visa (300)
In addition to all the conditions above, the visa applicant must have married their sponsor before their death.
Break up After Permanent Residency Is Granted: Your Legal Rights
It is crucial that you are aware of your partner visa rights. These rights include the following:
1. 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.
2. 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. You can also do the same. Your choices are to update changes of your circumstances in your ImmiAccount or complete the Partner Processing Enquiry Form.
Take note that even if you hold a temporary partner visa (visas 820 or 309), you can still qualify for a permanent partner visa in specific circumstances. Such circumstances include domestic violence, having a child with your former sponsor, or the death of your partner.
When Breakups Mix Up With Legal Matters, Who Can Help?
Every breakup situation is different. However, when legal matters get in the mix, it’s bound to become stressful. If you have already obtained permanent residency and you break up after permanent residency is granted, your partner cannot cancel your visa. This is because a permanent partner or spouse visa is permanent.
Things will take a different turn if you break up with your partner while you’re still on your visa. With all the requirements and evidence you need to gather, you’re going to need a competitive lawyer.
JB Solicitors has a leading team of experienced lawyers who can help with your specific situation. Not only we can help with visa matters like partner visas, but we can also help you lodge a domestic violence claim. Whatever problems you have with your visa, we can help you decide the next best step for your permanent residency.
Do you have any more enquiries? Contact us today.
