At JS Migration, we often hear this question from clients:
“Can I be in a de facto relationship with someone if I’m still legally married to my ex-spouse?”
The short answer? Yes — but with a big asterisk.
Let’s break down how Australia’s migration law handles these situations (and no, it’s not as scandalous as it sounds).
It is a common question often asked at JS Migration, and whilst on the surface it seem to be a complicated, through analysis of legal policy and by taking an empathetic approach to the scenario, there is a potential path to your bright future together in Australia on a Partner visa in what can look like an impossible journey.
We at JS Migration understand the peculiarities of such situations and are aware how prepared one must be in order to apply for an SC 820/801 Partner Visa and to actually be successful in their application.
In order to be as prepared as possible there are a few steps to be outlined
Step 1: Understanding the legal policy
What is a de facto relationship: As outlined in s5CB(2) of the Migration Act 1958, a de facto relationship, is where a person is in a relationship with another person and they are NOT married.
It outlines that to qualify as a de-facto relationship:
- They have a mutual commitment to a shared life to the exclusion of all others; and
- The relationship is genuine and continuing; and
- They either (1) live together or (ii) do not live separately and apart on a permanent basis.
On interpretation this means that even if your married, if your relationship with your new partner meets the standard outlined above it can be considered a de-facto relationship, and you can qualify for the SC 820/801 Partner Visa, despite being officially married to your previous spouse.
However, it is not that easy and there are more things to consider.
Step 2: What you must show
The Department of Home Affairs (DOHA) understands that legal marriages can end emotionally and practically long before divorce papers are filed. However, you must show and prove 3 key things in order for the DOHA to accept this.
Firstly, you must at least have been in the de-facto relationship with your new partner for 12 months. If you are still legally married to your previous spouse and unable to get divorces, you cannot register your relationship with your new partner, and this makes the 12-month de-facto period a MUST.
Secondly, there must be no romantic overlap, you must demonstrate that even if not legally divorced with your ex-spouse, you must be both emotionally and romantically over and that there is no ‘grey area’ between the two relationships. As outlined in (a) earlier, you and your new partner must be in a mutually exclusive relationship with each other
Finally, you must show that there is a genuine and continuing relationship as outlined in (b) earlier. Living together isn’t enough. You must show that you and your partner share your lives, emotionally, socially, and financially. The Department is looking for clear signs that you’re a real couple, not just housemates with a history
Step 3: How do I collate this
By consulting with an experience Registered Migration Agent, they can clarify what evidence you need to show and what you can discard in order to prove firstly that you are no longer in your ‘married’ relationship with your ex-spouse and you are truly involved in your de-facto relationship with your new partner.
Evidence which won’t matter:
- Divorce filings
- If you share the same last name or not
- Your Facebook status saying ‘It’s complicated’
It matters that you clearly show your previous marriage is over from a substance perspective.
Step 4: Understanding how the department check this
The case officer (or “delegate”) will look at:
- When you separated from your ex (and whether that separation is permanent)
- Whether you and your current partner live together, share finances, and plan a future together
- Whether your ex is still involved in your day-to-day life (pro tip: exes sleeping on the couch don’t help your case)
As a result, your evidence should be tailored towards proving these essential requirements.
Step 5: How to prepare yourself, so we can help you
We at JS Migrations are very empathetic and understanding of the different situations which arise. For us to maximise our ability to help you we simply request:
- Being open and upfront in your application to determine all possibilities
- Provide all the clear and consistent evidence you can, so we can compile in the most compelling format
- Be prepared in navigating the circumstances of your previous relationship and your current one.
Our Notes
At JS Migration, we’ve helped many clients in similar situations — because we don’t just understand the law, we understand life.
Let us help you present your story with clarity and compassion.
📞 Call us: +61 425 130 314
📅 Book a FREE consultation: Calendly Booking
🌐 Learn more: www.jsmigration.com