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Understanding How Divorce Affects Immigration Status

by | Apr 19, 2024 | Family Law

Divorce is a significant life event that can have profound implications for many things, such as on one’s immigration status in Australia. It can directly and indirectly affect your ability to remain in the country, depending on what type of visa or residency status you hold.

Navigating the intersection of divorce and immigration law can be complicated. A good immigration or divorce lawyer in Melbourne will be able to help you explore the ramifications – if any – of divorce on your residency. We will go through some of the information you need to know on both these subjects in this guide.

Divorce and Partner Visas

Many partners of Australian citizens or permanent residents will first apply for a partner visa to allow them to live, work and study in Australia without restriction. It also gives them the option to apply for Australian citizenship in the future. However, this visa requires the partner with Australian citizenship or permanent residency to sponsor the applicant.

In the event of a divorce, if the applicant is holding a temporary partner visa, that visa may be cancelled as they no longer meet the requirements of the visa, which is to be in a genuine marriage or de facto relationship with the sponsor. However, it is important to remember that the sponsor cannot cancel the applicant’s visa – this can only be done by an immigration case officer.

However, if the applicant has obtained a permanent partner visa, the visa will remain valid even after the divorce. In some situations, a permanent visa may still be granted to a temporary partner visa holder if the applicant has been a victim of domestic violence, has had an Australian child with the ex-partner or if the spouse/de factor partner has passed away.

Divorce and Permanent Residency/Citizenship

In the majority of cases, divorce will not affect the residency status of a permanent resident or Australian citizen. However, holders should still be aware of restrictions or obligations they may have following a divorce, depending on the length of the marriage or whether they were a sponsor.

  • Eligibility – Most pathways to PR or citizenship for spouses or partners begin with acquiring a partner visa, based on which PR may be granted if all criteria are fulfilled. If the PR or citizenship is granted and the couple divorces soon after, the residency may come under review by the immigration department to assess if the relationship was genuine.
  • Sponsorship Obligations – Permanent residents and citizens can sponsor their spouse or partner for a partner visa in Australia. This entails supporting them with accommodation, financial assistance and more for at least the first two years after the visa is granted. These obligations remain even if a divorce happens within the two-year sponsorship period.

Other Divorce-Related Factors Affecting Residency

Even if divorce itself does not directly impact an individual’s residency status or ongoing visa/citizenship application, it may lead to issues that can affect that individual’s eligibility. For instance:

1. Residency Requirements

Applicants for Australian citizenship must meet specific residency requirements, including observing a minimum period of lawful residence in Australia.

Divorce can disrupt residency patterns, especially if the applicant spent significant time abroad during the separation process or has to relocate for some time following the separation.

For instance, if an applicant returns to their home country after the divorce and does not return to Australia for an extended period due to family matters, they may find their eligibility for citizenship in jeopardy due to not having satisfied residency requirements.

2. Family Violence

Family/domestic violence is often a reason for divorce, and it should be noted that the Australian Government has zero tolerance for family violence. If a temporary or permanent visa holder is proven to have committed domestic violence, any ongoing applications could be cancelled and visas may be revoked.

If an applicant is the victim of domestic and family violence by their sponsor, they may be eligible for a permanent visa even after their divorce under certain conditions. They will need to notify the Department of Home Affairs and gather all relevant evidence for submission.

This can be a long and difficult process, so it is ideal to enlist the help of a divorce and immigration lawyer for a smooth outcome.

3. Children

If there are children involved in the divorce, decisions over visa status and custody arrangements will be made with their best interests and wellbeing in mind.

Nevett Ford – Your Trusted Melbourne Divorce Lawyers

When the complexities of divorce are compounded by the complications of immigration law, it can be challenging and time-consuming to try and cover all your legal bases on your own. Experts such as divorce and immigration lawyers can assist in effectively managing the challenges and uncertainties associated with divorcing and maintaining one’s legal status in Australia.

At Nevett Ford, our experienced divorce lawyers in Melbourne are ready to help you navigate your divorce and any consequent effects on your immigration status with confidence. We ensure a smooth divorce process and do our best to minimise any negative effects on your current or future citizenship or permanent residency status. Contact us today to see how we can help you.