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 someone else?”
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).
📜 The Legal Bit: What Section 5CB(2) Really Means
Section 5CB of the Migration Act defines what qualifies as a de facto relationship for visa purposes.
Now here’s the twist:
👉 Subsection 5CB(2) says that a person can’t be in a de facto relationship with someone if they are married to that same person.
Translation? If you’re legally married to each other, you can’t also claim to be in a de facto relationship with each other. That would be like ordering two versions of the same dish and calling it a tasting platter. Not allowed.
But here’s where it gets interesting…
💡 You Can Be in a De Facto Relationship with Someone Else — Even If You’re Still Married
Yes, you read that right.
Just because you’re still legally married to someone else doesn’t automatically disqualify you from being in a de facto relationship with a new partner. The Department of Home Affairs (DOHA) understands that legal marriages can end emotionally and practically long before divorce papers are filed.
BUT — and it’s a big but — you must prove two key things:
✅ What You Must Show for a Partner Visa (SC 820/801) — When You’re Still Legally Married and Can’t Register Your Relationship
📅 At least 12 months of a de facto relationship
👉 If you’re still legally married to someone else, you cannot register your relationship with your new partner. That makes the 12-month de facto period absolutely essential. You and your current partner must have been in a mutually exclusive, committed relationship for at least 12 months before lodging your application.
💔 No romantic overlap
👉 You must demonstrate that your previous relationship — even if not legally ended — is emotionally and romantically over. The Department needs to see that you’re not in a ‘grey area’ between two relationships. It must be you and your new partner only, with no ongoing emotional or romantic involvement with your ex.
❤️ A genuine and continuing relationship
👉 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.
🚫 What Doesn’t Matter (Legally Speaking)
Whether you’ve filed for divorce
Whether you still share the same last name as your ex
Whether your Facebook status still says “It’s Complicated”
What does matter is whether you can clearly show that your previous marriage is over in substance, even if it’s still legally intact.
🔍 How the Department Checks
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)
🧠 Our Advice? Be Honest — and Be Prepared
We know life isn’t always black and white. Relationships evolve, paperwork lags, and love doesn’t wait for court dates.
If you’re in a de facto relationship but still legally married to someone else, the key is to:
✔️ Be upfront in your application
✔️ Provide clear, consistent evidence
✔️ Explain the circumstances of your previous relationship and current one clearly
✔️ Talk to a registered migration agent (hello, that’s us 👋)
❤️ Real People. Real Lives. Real Solutions.
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
