Overview
This blog will help you to navigate the intricacies surrounding a break-up with a de-facto partner, including issues related to family violence, parental responsibility, and the process of leaving Australia, along with insights into visa grants, prospective marriage visas, and DHA letters.
The consequences of a relationship ending while holding a partner visa depend on whether it's temporary or permanent, as well as the reasons behind the breakup recognised by the Department of Home Affairs. If the breakup aligns with the Department's accepted reasons, the implications may vary.
What happens if I'm on a partner visa and my relationship has ended?
In the process of obtaining permanent residency through a partner visa application, individuals may face challenges, including navigating complexities of a former relationship. If you've suffered family violence or encountered difficulties obtaining judicial evidence and seeking assistance from an experienced Australian Migration Agent is crucial. We will guide you through the Australian visa system, ensuring you understand your legal rights. Despite the toll of a relationship breakdown, gathering specific evidence is imperative to uphold partner visa rights.
It's crucial to understand your obligations regarding notifying the Department of Home Affairs about changes to your relationship status. Failing to do so can have serious consequences for your immigration status. For temporary partner visas, if the breakup doesn't align with the Department's accepted reasons, you may need to leave Australia unless you secure an alternative visa. Conversely, holders of permanent partner visas generally have the right to remain in Australia regardless of their relationship status.
Different partner visa types in Australia can have varying impacts on your situation if your relationship ends
When you're on a partner visa and your relationship has ended, the implications vary depending on the type of visa you hold.
Partner visa (Subclass 801/100)
If you have a permanent partner visa (Subclass 801/100), your right to stay in Australia is unaffected by the relationship ending. You can continue living in Australia without needing to inform the Department of Home Affairs.
Temporary Partner visa (Subclass 820/309)
However, if you're on a temporary partner visa (Subclass 820/309), the situation is different. In the event of a relationship breakdown, you must notify the Department of Home Affairs about the change in your relationship status. The Department will then assess whether your circumstances align with their accepted reasons for relationship breakdown. You'll need to provide evidence to support your claim, which will undergo thorough evaluation.
If the Department finds your explanation and evidence satisfactory, you may still be eligible for a permanent visa. However, if your explanation or evidence falls short of their criteria, the Department may proceed with visa cancellation proceedings, potentially leading to your departure from Australia. It's important to handle this process diligently and seek professional help if needed.
Requirement to notify the Department of home Affairs
To maintain eligibility for a partner visa, it's crucial to demonstrate that your relationship is genuine and continuing. If this status changes, and your relationship is no longer genuine or continuing, you must inform the Department of Home Affairs promptly. Failing to meet this criterion jeopardises your visa eligibility.
Notifying the Department of your change in circumstances can be done through various channels:
- The simplest method is to complete the Notification of Relationship Cessation form in the 'Update Details' section of your ImmiAccount.
- Alternatively, you can notify them via email by submitting a Change of Circumstances form (Form 1022).
Prompt notification is essential. If your relationship's genuineness is disproven, and you haven't informed the Department, your visa may be cancelled without allowing you an opportunity to explain your situation. Therefore, swift action is necessary to avoid such repercussions.
In the event that your ex-partner informs the Department of Home Affairs (DHA) about the breakdown of your relationship, you can anticipate receiving correspondence, typically via email, from a Delegate seeking your comments on the reported relationship breakdown. However, it's not uncommon for this communication to take weeks, and in some cases, months to reach you. Upon receiving the letter, you will be afforded a 28-day window to address the allegations regarding the end of your relationship. This time frame provides you with ample opportunity, spanning at least 4 weeks, to carefully evaluate your options and prepare a comprehensive response to the Department's inquiries.
So what are your options to remain in Australia?
After notifying the Department, you may still be eligible for a permanent visa, depending on your personal circumstances. Acceptable circumstances include experiencing domestic and family violence, having a child with your sponsor, or the death of your partner. If one of these circumstances applies to you, you'll need to provide an explanation and evidence to the Department. Upon notification, you'll typically receive an invitation to respond within 28 days.
Domestic and family violence
For victims of domestic and family violence, seeking immediate help is essential. You can call the Police on 000 for emergency assistance or contact 1800RESPECT for over-the-phone counselling services. When providing evidence of domestic violence, it's crucial to include various types of evidence, such as medical reports documenting injuries sustained, police records of incidents, and testimony from professionals like social workers or psychologists who have worked with you.
Domestic and family violence can take many different forms. Physical abuse involves any violent behaviour or threats of violence, such as hitting, punching, pulling hair, choking, pinching, pushing, stabbing, or restraining someone. These actions often result in physical injuries, which may not always be visible to others. Additionally, using weapons to instil fear or causing damage to property are forms of physical abuse. Another aspect of physical abuse is depriving someone of basic needs like sleep, food, or medication.
Sexual abuse refers to unwanted sexual activity, including forcing someone to engage in sexual intercourse against their will, coercing them into participating in sexual acts they're uncomfortable with, or making them watch sexual acts, even digitally.
Verbal or emotional abuse involves behaviours that make someone feel worthless or belittled. This can include threats to harm them, their family, or pets, using abusive or culturally offensive language, harassing or threatening them, or trying to control them through fear, such as threatening deportation or manipulating their immigration status. Coercive control, which entails patterns of behaviour aimed at isolating, manipulating, and controlling someone's everyday life, is also considered emotional abuse.
Social abuse aims to cut someone off from their support network, such as family, friends, or community. This can involve insulting them in public, preventing them from attending social events, using lies to tarnish their reputation, or controlling their access to community services or organisations. Social abusers may also restrict their victim's interactions, monitor their movements, and limit their use of social media or other communication channels.
Financial abuse involves controlling someone's access to money or resources, making them financially dependent, or using joint finances for personal gain without their consent. This can include forcing them to sign contracts or loans, questioning their spending, incurring debts in their name, or preventing them from working and earning their income. Additionally, financial abuse may include demanding dowry payments or coercing further financial contributions.
Children
To qualify under the category of having a child with your sponsor, you must demonstrate that you have parental responsibility for at least one child under 18 years of age. This means that you have legal rights and obligations regarding the care, welfare, and upbringing of the child. You may be considered to have parental responsibility if you are the biological parent, adoptive parent, or legal guardian of the child. Providing evidence of this parental responsibility, such as a birth certificate or family court orders establishing custody arrangements, is essential to support your claim for eligibility under this category.
Death of sponsor
In the unfortunate event of the sponsor's death, you must demonstrate that the relationship would have continued if they were still alive. Providing a death certificate as evidence is necessary, along with any additional information supporting your claim.
Regardless of the circumstances, notifying the Department promptly and providing adequate evidence is crucial for maintaining visa eligibility and ensuring your safety and well-being during this challenging time. If you need assistance navigating this process, seeking advice from an Australian Migration Agent is advisable.
Possibility of visa cancellation
If your relationship is no longer deemed 'genuine and continuing', the possibility of visa cancellation arises. While certain circumstances permit temporary visa holders to pursue permanent residency despite relationship breakdowns, these exceptions aren't universally applicable. If your situation doesn't meet the exemption criteria, retaining your temporary visa becomes unlikely. In such instances, you may be required to take one of the following steps:
- Apply for a new visa that aligns with your current circumstances.
- Arrange to leave Australia if securing another visa isn't feasible.
- Should you believe that your visa application decision was erroneous, you may have recourse to challenge it. This typically involves seeking a review of the decision, which can be pursued through Australia's administrative review tribunal or, in certain instances, through the Federal Court.
Engaging the expertise of an Australian Migration Agent is imperative throughout this process. We can offer invaluable assistance in navigating visa applications and reviews. We have a dedicated and trusted team of lawyers on call to assist in any legal proceedings that may be required. Engaging an Australian Migration Agent may optimise your chances of achieving a favourable outcome.
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What other options are available?
If your partner visa is revoked and you don't qualify for a permanent partner visa based on the aforementioned categories, you can explore alternative visa options. Many applicants opt for this route, particularly if they have built significant ties in Australia and wish to avoid returning to their home country. Some visa options to contemplate include:
- Skilled and working visas
- Protection visas
Upon applying for a different visa, you'll receive a bridging visa, permitting you to stay in Australia while your application is under review. It is important to obtain the advice of an Australian Migration Agent when making decisions about whether to remain in Australia after your relationship has broken down. Contact us now to receive tailored advice.
Can my ex-partner cancel my visa?
It can be incredibly distressing to receive a threat from your ex-partner that they will cancel your visa. This is made worse by the misconception that the sponsoring partner holds the power to terminate the visa. However, it's imperative to clarify that only a designated case officer or delegate of the Minister for Immigration possesses the authority to cancel or refuse a visa. Your ex-partner does not have the power to cancel your visa without your consent, dispelling this common misconception and providing assurance amidst such distressing circumstances.
Seek advice from migration agents if your relationship has ended and you’re on a partner visa
If you find yourself on a partner visa and your relationship has ended, the situation can be complex and challenging to navigate. Depending on the type of visa you hold, such as a temporary partner visa or a permanent partner visa, the implications of the relationship breakdown vary. If you were in a de facto relationship or a spousal relationship and the relationship has ended, you may wonder about your partner visa rights and what happens next. In such circumstances, seeking advice from a registered migration agent is crucial to understand your legal rights and explore the available visa options.
While the relationship breakdown may lead to concerns about visa cancellation or the need to apply for a new visa, an experienced migration agent can provide guidance tailored to your specific circumstances. We can assist you in gathering specific evidence to support your case and may still be able to help you obtain permanent residency in Australia, despite the relationship ending. It's essential to provide evidence promptly and respond within the required timeframes, as failure to do so could affect your ability to stay in Australia. By contacting us for professional help, you can navigate the visa application process and explore other visa options that may still be available to you.
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