That is the whole of the problem and most of the solution. This page explains why the spouse path closes, when the de facto path is open, how Australian divorce timing works, overseas divorces, and what evidence shows an earlier relationship has ended.
Why can't you be a spouse while an earlier marriage stands?
Section 5F(2)(a) of the Migration Act 1958 requires that the couple are "married to each other under a marriage that is valid for the purposes of this Act". A marriage entered into while one party is still lawfully married to someone else is not valid. For a marriage in Australia, section 23B(1)(a) of the Marriage Act 1961 makes it void where either party is, at the time, lawfully married to some other person. For a marriage performed overseas, section 88D(2)(a) says it is not recognised where either party was then a party to a marriage with some other person that was recognised in Australia as valid. Overseas marriages works through the recognition test in full.
So a second marriage celebrated before the first ended does not become valid when the divorce later comes through. It was void or unrecognised from the start, and a fresh ceremony is needed.
Watch out
the married spouse requirements are assessed at the time of application and again at decision. A marriage certificate issued by an authority that was never told about an earlier subsisting marriage does not make the marriage valid. If there is any doubt about whether an earlier marriage had ended, resolve it before a new ceremony, not afterwards.
Can you still apply as a de facto partner?
Often, yes. Section 5CB(2) of the Migration Act requires only that the couple are not in a married relationship with each other for the purposes of section 5F, that they have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, that they live together or do not live separately and apart on a permanent basis, and that they are not related by family.
Being married to a third person is not among those conditions. What matters is whether they are met between you and your sponsor. The earlier marriage still bears on the assessment, because a mutual commitment "to the exclusion of all others" is difficult to establish while an earlier relationship continues in substance. It must genuinely be over, not merely undissolved on paper.
Timing then decides whether the path is open. Regulation 2.03A of the Migration Regulations 1994 generally requires the de facto relationship to have existed for at least the 12 months ending immediately before the date of the application, and separation from a former spouse and the start of a new relationship are often close together, so count carefully. Regulation 1.09A governs how the four conditions are worked out, requiring the Minister to consider all of the circumstances of the relationship. See de facto partner requirements and exemptions from the 12-month rule.
How long does an Australian divorce take?
There is a separation period before an application can be filed, and a further wait before the order takes effect.
Twelve months of separation before filing. Section 48 of the Family Law Act 1975 provides that the ground for a divorce order is that the marriage has broken down irretrievably, and that the ground is established only if the court is satisfied the parties separated and then lived separately and apart for a continuous period of not less than 12 months immediately preceding the date the application was filed. No order is made if the court is satisfied there is a reasonable likelihood of cohabitation being resumed.
Separation can happen under one roof. Section 49 provides that parties may be held to have separated and lived separately and apart even though they continued to reside in the same residence, or one performed household services for the other.
One short reconciliation does not reset the clock. Section 50 provides that where the parties resumed cohabitation once and separated again within three months, the periods before and after may be added together, although the cohabitation itself does not count.
A divorce within two years of the marriage needs more. Section 44(1B) requires the leave of the court, or a counselling certificate filed with the application.
The order takes effect later than it is made. Section 55 provides that a divorce order takes effect one month after it is made, or when an order under section 55A is made, whichever is later, and section 59 provides that a party may marry again once it has taken effect. Court listing times sit on top of all of this.
What about an overseas divorce?
Section 104 of the Family Law Act recognises a divorce effected under the law of an overseas jurisdiction where, when the proceedings were instituted, one of a list of connections to that jurisdiction existed — broadly, that a party was ordinarily resident there, domiciled there, or a national of it in defined circumstances. Recognition is refused where it would be refused under the common law rules of private international law because a party was denied natural justice, or where it would manifestly be contrary to public policy. A divorce outside the section may still be recognised under those common law rules.
Practically: obtain the decree or certificate from the issuing authority, have it translated — see identity documents and translations — and be able to say where each party lived and was a national of at that date.
What evidence shows the earlier relationship has ended?
Whether you apply as a spouse after a divorce or as a de facto partner before one, the Department will want the earlier relationship accounted for. Useful material includes:
- the date of separation and something that fixes it: a lease, a change of address, a bank record, a message;
- separate addresses from that date, or an explanation if you continued to share a residence;
- the divorce application, order and certificate, or the equivalent overseas documents;
- a property settlement, consent orders, changed nominations on superannuation, insurance and wills, or other evidence that finances were untangled;
- care arrangements for any children of the earlier relationship, and statements from people who know both households.
Deal with it directly in the relationship statement rather than leaving the Department to infer a timeline. If your marital status changes while the application is on foot, you must tell the Department — see telling Home Affairs about changes.
An application prepared by a migration lawyer is more likely to succeed here than on almost any other partner visa topic, because the two failure modes are structural: a marriage that was never valid, and a de facto claim lodged before the 12 months had run. Neither can be cured after lodgement, and the Department does not refund the application charge if it refuses. No one can promise an outcome.
What to do next
Work out which path is open on today's dates, not the dates you expect. If the divorce has taken effect and you intend to marry, getting married in Australia sets out the process and its own notice period. If you will apply as de facto partners, fix your relationship start date and check it against de facto partner requirements before you lodge.
Common questions
Can I apply for a partner visa if my divorce is not final?
You cannot apply as a spouse, because section 5F of the Migration Act 1958 requires the couple to be married under a marriage that is valid for the purposes of that Act, and a marriage entered into while one party is still lawfully married to someone else is not valid. You may be able to apply as a de facto partner, because section 5CB does not require a marriage. The earlier relationship must genuinely have ended and the four conditions in section 5CB must be met.
How long do you have to be separated before you can apply for a divorce in Australia?
Under section 48 of the Family Law Act 1975, a court can only make a divorce order if it is satisfied that the parties separated and then lived separately and apart for a continuous period of not less than 12 months immediately before the divorce application was filed. Section 49 allows parties to be separated while still living in the same residence. Section 50 allows one resumption of cohabitation of less than three months without restarting the period.
When does an Australian divorce actually take effect?
Not on the day the order is made. Section 55 of the Family Law Act 1975 provides that a divorce order takes effect one month after it is made, or when an order under section 55A is made, whichever is later. Section 59 provides that a party may marry again once the divorce order has taken effect. Building a wedding date on the hearing date rather than the effective date is a common and avoidable mistake.
Is an overseas divorce recognised in Australia?
It can be. Section 104 of the Family Law Act 1975 recognises a divorce effected under the law of an overseas jurisdiction where one of a list of connections to that jurisdiction existed, such as the respondent being ordinarily resident there or either party being domiciled there when the proceedings began. Recognition is refused where a party was denied natural justice or recognition would manifestly be contrary to public policy. Whether your divorce qualifies is a legal question worth checking before you rely on it.
What evidence shows that an earlier relationship has ended?
The separation date and how you can prove it, separate addresses from that date, any court or tribunal documents, a property settlement or consent orders, changed beneficiary and insurance nominations, and statements from people who know both households. Where children are involved, care arrangements are usually the clearest evidence of two separate lives.
Sources
- Migration Act 1958, sections 5CB, 5F and 12 (Federal Register of Legislation)
- Marriage Act 1961, sections 23B and 88D (Federal Register of Legislation)
- Migration Regulations 1994, regulations 1.09A and 2.03A (Federal Register of Legislation)
- Subclass 820 Partner visa (temporary), Department of Home Affairs
Keep reading
Partner Visas for Same-Sex Couples
Same-sex couples apply for the 820 and 801 on exactly the same criteria — what the Migration Act says, and how to evidence a relationship that had to be hidden.
Read the guide →
Getting Married in Australia Before Applying (NOIM)
The Notice of Intended Marriage, the one-month notice period, who can marry you, and what marrying in Australia does and does not do for a partner visa.
Read the guide →
Is Your Overseas Marriage Recognised in Australia?
The test for recognising an overseas marriage for a partner visa — section 5F(2)(a), section 12 of the Migration Act, Part VA of the Marriage Act, and the exceptions.
Read the guide →