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.
Impact of a breakup while on a partner visa
In the process of obtaining permanent residency through a partner visa application, individuals may face challenges, including navigating the complexities of a former relationship. If you've suffered family violence or encountered difficulties obtaining judicial evidence, seeking assistance from an experienced Australian migration agent is crucial. They can guide you through the Australian visa system and help you understand your legal rights.
Despite the toll of a relationship breakdown, gathering specific evidence is imperative to uphold partner visa rights. It's also important to understand your obligation to notify the Department of Home Affairs about any change in your relationship status. Failing to do so can have serious consequences for your immigration status.
Factors the Department of Home Affairs considers include:
- Whether an applicant holds a temporary or permanent partner visa
- Whether the reason for relationship breakdown falls under the following recognised circumstances:
- Family violence (where the applicant experienced domestic violence)
- Having a child together with shared custody or parental responsibility
- The death of the sponsoring partner
- The quality and type of supporting evidence provided does not satisfy the Department’s requirements
For temporary partner visa holders, if the breakup does not fall within the Department's accepted reasons, you may need to leave Australia unless you secure an alternative visa. Conversely, holders of permanent partner visas can generally remain in Australia regardless of their relationship status.
How different partner visa types affect your status after separation
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.
Important: If you hold a temporary partner visa and your relationship ends, your sponsoring partner cannot cancel your visa, even if they threaten to do so. Under Australian law, only the Department of Home Affairs has the authority to refuse or cancel a visa.
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Notifying the Department of Home Affairs about relationship changes
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.
Options to stay in Australia after a breakup
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 victims’ 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.
Tip: The required evidence differs from case to case. Submitting strong and complete documentation within the DHA deadline (usually 28 days) significantly increases the chance of remaining in Australia after a partner visa relationship breakdown.
Visa cancellation risk — and how to respond
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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Other visa options if your partner visa cannot continue
If your partner visa is revoked and you don't qualify for a permanent partner visa under the recognised exceptions, you can explore alternative visa options to remain in Australia.
Warning signs your visa may be at risk of cancellation
Common warning signs that your visa may be cancelled:
- Requests from the Department of Home Affairs for additional information about your relationship
- Notification that your sponsor has withdrawn their support
- Failure to notify the Department about a relationship breakdown
- Receiving a Notice of Intention to Consider Cancellation (NOICC)
After the Department of Home Affairs outlines concerns that may indicate a potential cancellation, you are:
- Given a limited timeframe of 7–28 days to respond with evidence and explanations
- Required to await a decision from the Department on whether they will cancel or allow you to continue your visa
If your visa is cancelled, you may be able to lodge an ART appeal within a stipulated deadline.
Many applicants who opt for alternative visa pathways after visa cancellation have significant personal, professional, or community ties in Australia. Some visa options to consider are:
- Skilled and work visas
- Protection visas
When applying for a different visa, you may be granted a bridging visa, permitting you to stay lawfully in Australia while your application is under review.
Get professional advice
Responding incorrectly or too late can seriously impact your ability to stay in Australia. 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 for advice on the next steps.
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 are on a partner visa and your relationship has ended, the situation can be complex 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 that has now ended, you may be unsure about your rights and what happens next.
In such circumstances, seeking advice from a registered migration agent is crucial to understanding your legal position and explore the available visa options.
You should act quickly and get advice if you:
- Received a letter or notice from the Department of Home Affairs (e.g., request for information or cancellation warning)
- Experienced family or domestic violence
- Hold a temporary partner visa and do not clearly meet an exemption pathway
- Have a child with your former partner and need to establish your visa position
- Are unsure about deadlines or how to respond to the Department of Home Affairs
While a relationship breakdown may raise concerns about visa cancellation or the need to apply for a new visa, timely and accurate action is critical. An experienced migration agent can provide guidance tailored to your specific circumstances.
Our team can assist you in gathering relevant evidence to support your case. It is essential to provide evidence promptly and respond within the required timeframes, as failure to do so could affect your ability to stay in Australia.
Book a consultation with us today to get advice and protect your visa status.
Frequently Asked Questions
Can I stay in Australia if my partner visa relationship has ended?
It depends on your visa stage and circumstances. If you hold a permanent partner visa, you can remain in Australia even if the relationship ends. However, if you are on a temporary partner visa, your ability to stay will depend on whether you meet specific exceptions, such as suffering family violence, having a child with your former partner, or the death of your partner. If none of these apply, you may need to leave the country or explore other visa pathways.
Do I need to notify the Department of Home Affairs about the breakup?
Yes, you are required to inform the Department of Home Affairs if your relationship ends. Failing to notify them can lead to serious consequences, including visa cancellation.
What evidence do I need to continue my visa after separation?
The evidence required to continue your visa depends on your situation. You will typically need documents that support your eligibility under specific exceptions, such as police reports, medical records, or statutory declarations in cases of family violence. If a child is involved, documents showing shared parental responsibility will be important.
Can I remain in Australia if the relationship ended due to family violence?
Yes, you can. Under Australian migration law, family violence is recognised as a valid reason to continue a partner visa application. You will need to provide enough supporting evidence, which may include legal documents, letters from professionals like therapists, and witness statements.
What happens to my visa if we share custody of a child?
If you and your former partner have a child together, you may be eligible to continue your visa process. The Department of Home Affairs will require evidence for ongoing parental responsibility and involvement in the child’s life. Evidence such as custody arrangements and proof of care will be important.
Will my bridging visa be cancelled after the breakup?
Not automatically. A bridging visa generally remains valid while your substantive visa application is being processed. However, if your partner visa is refused or cancelled, your bridging visa may also be affected.
Can I switch to another visa if I’m no longer eligible for a partner visa?
Yes, you may be able to apply for another visa, such as a skilled or protection visa. Each option has its own eligibility requirements, so it is important to assess your situation carefully, consult a professional, and act within the stipulated timelines.
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