Can You Apply for an Australian Partner Visa While Still Married Overseas?

Written By Deepika Khurana

If you’re in a genuine de facto relationship with an Australian citizen but still legally married to someone else overseas, you might be wondering: Can I still apply for a Partner visa?

This situation is surprisingly common, especially among people who have separated from their overseas spouse but haven’t yet finalised their divorce. Fortunately, Australian immigration law recognises that relationships can end in practice even if they haven't ended legally.

Here’s what you need to know about eligibility, legal definitions, registration rules, and a helpful provision that allows relationship registration even after lodging your Partner visa application.

The Short Answer: Yes, You Can Apply — If You Meet These Conditions

Even if you’re still legally married to someone else, you can apply for an Australian Partner visa based on your new de facto relationship — as long as:

  • You and your previous spouse are permanently separated

  • Your current relationship meets the legal definition of a de facto relationship

  • You can provide strong supporting evidence

Permanent Separation: What Immigration Law Looks For

According to section 5F(2)(d)(ii) of the Migration Act 1958, a person is no longer in a “married relationship” if they are living separately and apart on a permanent basis — even without a formal divorce.

The Department of Home Affairs (DHA) will assess:

  • Whether you and your spouse live apart

  • Whether there is no emotional or financial connection

  • Whether the separation is genuine and ongoing

A divorce is not required at the time of application — but you must prove that the previous relationship has ended in substance, not just in intention.

What Counts as a De Facto Relationship?

Under section 5CB of the Migration Act 1958 and regulation 1.09A of the Migration Regulations 1994, you’re considered a de facto partner if:

  • You have a mutual commitment to a shared life (excluding all others)

  • Your relationship is genuine and continuing

  • You live together, or do not live separately and apart on a permanent basis

  • You are not related by family

And here’s the critical bit…

The 12-Month Requirement — And How to Work Around It

For most Partner visa applicants, regulation 2.03A(3) requires that you’ve been in a de facto relationship for at least 12 months immediately before the visa application is lodged.

But there’s a key exception...

Subregulation 2.03A(5): Registration Can Happen After You Apply

If your de facto relationship is registered under a state or territory law, you don’t need to meet the 12-month rule. And here’s the important part:

Unlike subregulation 2.03A(3), which requires the de facto relationship to exist for 12 months before applying, subregulation 2.03A(5) does not specify when the relationship must be registered.

So, if you register your de facto relationship after lodging your visa application but before a decision is made, you're still considered to have met the registration requirement.

This means:
If you're still married at the time of application and can't register the relationship, but you finalise your divorce before the visa is decided, you can register your de facto relationship after the fact and still satisfy the legal requirement — provided your relationship meets all the other de facto criteria.

State-by-State Relationship Registration Rules

In several states, you cannot register a de facto relationship if either partner is still legally married:

Relationship Registration Not Allowed If Still Married:

Because of these restrictions, couples in these states must wait until after a divorce is finalised to register their relationship. But thanks to subregulation 2.03A(5), they can still register post-application, so long as it happens before the DHA makes a decision.

Supporting Evidence Is Essential

If registration isn’t possible yet, you’ll need to build a strong case through documentation. Here’s what to include:

🔹 Evidence of Permanent Separation from Your Spouse:

  • Statutory declaration outlining your separation

  • If available, a declaration from your former spouse

  • Proof of separate residences, finances, and social lives

  • A letter from a lawyer outlining the intention to divorce

🔹 Evidence of Your De Facto Relationship:

  • Joint lease, utility bills, or bank statements

  • Photos together and travel records

  • Social media posts, event invites, or family involvement

  • Declarations from friends and family confirming your relationship

Final Thoughts

Being legally married to someone overseas does not stop you from applying for a Partner visa in Australia — provided:

  • You're genuinely and permanently separated

  • Your current relationship meets the de facto definition

  • You meet either the 12-month cohabitation requirement or register the relationship after divorce

Even if you can't register the relationship right now due to legal restrictions in your state, you can do so later, after your divorce is finalised — as long as it’s before the visa decision is made.

With good planning and legal guidance, your application can still be successful.

Frequently Asked Questions (FAQs)

Can I apply for a Partner visa if I’m still married?
Yes, if you’re permanently separated and can provide sufficient evidence.

Do I need to be divorced before applying?
No, but you must show that your previous relationship has ended.

How long do I need to live with my partner before applying?
12 months — unless your relationship is registered or there are exceptional circumstances.

Can I register my de facto relationship after applying for the visa?
Yes! Under subregulation 2.03A(5), if you register your relationship after applying but before the visa is decided, you are taken to meet the requirement.

Which states don’t allow registration if you’re still married?
NSW, Victoria, and South Australia all restrict registration if one partner is legally married.

Useful Links

Need Help Navigating a Complex Partner Visa?

At One Planet Migration, we specialise in complex cases involving overseas marriages, de facto relationships, and post-application registrations. Whether you're still waiting on a divorce or unsure about how to register, we’ll guide you every step of the way.

Book a consultation or call us on (03) 9626 5410 to speak with a migration lawyer today.

Simplifying immigration. Connecting humanity.

Note: The information provided in this article is meant for general informational purposes only and should not be interpreted as legal advice. Although we strive to provide accurate and useful information, the nuances of Australian immigration law demand personalised advice from legal professionals. Given the dynamic nature of migration regulations, it is essential to consult with experienced immigration experts for up-to-date insights tailored to your individual circumstances. We strongly advise seeking professional guidance to navigate the complexities of Australian immigration law effectively and to achieve the most favorable outcomes for your immigration journey.

Deepika Khurana
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