Partner Visa Case Study: Approved While Still Married
When the Past Isn’t Yet Past: Navigating a Partner Visa While Still Legally Married to Someone Else
When it comes to partner visas, I’ve worked with couples from all walks of life. Long-distance partners, blended families, same-sex couples, young students and older adults finding love again. No two relationships are the same and the same goes for migration journeys.
One scenario I see more often than people might expect is this: starting a genuine relationship with an Australian partner while your previous marriage hasn’t yet been formally finalised. It can feel complicated but it’s not impossible.
In today’s article, I want to walk you through a real example from my practice at Flow Migration Law. This case involved a thoughtful, family-oriented client from Thailand, and it shows how careful planning and a step-by-step strategy can lead to a successful outcome, even when the timing doesn’t seem ideal on paper.
Disclaimer: The information in this article is for general guidance only and is not intended as legal advice. Immigration laws and policies change regularly, and individual circumstances can significantly impact visa eligibility and outcomes. If you are considering applying for a visa or are unsure about your situation, it’s best to seek advice from a registered migration agent or Australian legal practitioner.
Flow Migration Law provides tailored legal advice for partner visa applicants. Book a consultation if you’d like personalised support.
In the video below, I (Jay, your Principal Migration Lawyer) break down this complex case study, detailing the step-by-step strategy we used to achieve a successful outcome for our client.
The Situation: A New Chapter Without Closing the Last
My client was in his 40s, Thai national, previously married and a proud father of two children. Although he had separated from his ex-partner years ago, they shared joint parental responsibility and were still legally married due to delays in the civil divorce process.
In 2021, he met his Australian partner while she was travelling in Thailand. Their relationship began in earnest in 2022 and things grew serious. The couple wanted to build a future together but there were a few barriers:
He wasn’t ready to relocate to Australia just yet. He needed time to wrap up personal matters, especially around his children.
Although he wanted to marry his Australian partner, he was still legally married to his ex.
He hoped to visit his partner in Australia regularly while preparing for a future move.
At this point, the question was: how do we manage the transition while respecting the immigration framework and maintaining the integrity of his relationship?
The Strategy: Work With What’s True and Plan for What’s Next
The first instinct for many couples is to apply for a prospective marriage visa (subclass 300). It’s a good fit for couples who are engaged and intend to marry in Australia. But this visa has one strict requirement. You must be legally free to marry. In this case, that wasn’t possible just yet.
So we took a different path.
We decided to focus first on a subclass 600 visitor visa. The client’s goal was to visit his partner in Australia, maintain their growing relationship and take the time needed to sort out his divorce overseas.
Crucially, we were upfront in the application. We declared his marital status as separated, not single or married, and clearly explained that he was in a committed relationship with an Australian partner. We outlined his strong personal ties to Thailand, that is, his children, work, and property and provided a relationship history that showed depth and authenticity.
Outcome? He was granted a 1-year visitor visa with multiple entries and a maximum 3-month stay per visit. He used this visa to travel to Australia several times while also finalising his divorce back home.
The Transition: From Visitor to Prospective Marriage Visa
Once the divorce was complete, the couple was ready to take the next step. Given the client’s preference to delay permanent relocation (he wanted to continue parenting his children until they turned 18), a prospective marriage visa was the right fit.
We prepared a subclass 300 prospective marriage visa application with detailed documentation of the relationship, including evidence from their time apart and time spent together in Australia. The visa was granted, and the client eventually moved to Australia. The couple married and later lodged a partner visa (subclass 820) onshore.
What If Things Had Gone Differently?
If the visitor visa had been refused? We had a backup plan. Refusals are not uncommon, especially if the Department doubts the person is a genuine temporary entrant. If that happened, we would have analysed the refusal reasons and either strengthened a new visitor visa application or prepared to apply for the prospective marriage visa once the divorce was finalised.
In any event, the Australian sponsor had always planned to visit the applicant in Thailand, if needed, which would have further strengthened the relationship timeline and supported a later visa application.
If they wanted to apply onshore instead? It was certainly possible. Once the divorce was finalised and the client held a valid visitor visa, they could have married in Australia and lodged an onshore partner visa (subclass 820). But in this case, the subclass 300 was a better fit for their lifestyle, family needs and timeline.
What if the divorce could never be finalised? This does make things messier but not impossible. While the person would no longer be able to apply for a Prospective Marriage (Subclass 300) visa, there may still be a path forward.
In some cases, it’s possible to apply for a partner visa instead as a de facto partner but strict de facto criteria must be met depending on the circumstanes and visa pathway.
Takeaway: Partner Visa Pathways Aren’t One-Size-Fits-All
What this story shows is that partner visas don’t always follow a straight line. Life is complex. Love doesn’t wait for paperwork. And migration law, when applied with thought and care, can support people in navigating both.
If you’re in a similar situation, perhaps still legally married to someone you’ve long separated from, or unsure of how to balance your visa plans with children from a previous relationship, there are options available. It’s about finding the path that works for you.
At Flow Migration Law, we exclusively work with partner visa clients. Whether you’re planning to DIY your visa with professional support through our Expert DIY Partner Visa Service, or want a comprehensive, hands-on approach, we can help you design a visa strategy that fits your life, not the other way around.
Need help working out your options? You’re welcome to book a free 20-minute discovery call to see what’s possible: Book here.
FAQ: Case Study of Partner Visa While Divorce Pending With Ex Partner
❓Can I apply for a partner visa in Australia if I’m still married to someone else? Yes. If the previous relationship has genuinely ended and you meet the de facto relationship criteria as well as you can show strong evidence that your new relationship is genuine and continuing.
❓Is a divorce required before applying for a Subclass 300 Prospective Marriage Visa? Yes, because you need to be legally free to marry your sponsor. Timing is key, especially if your divorce is still being processed.
❓What if I’m separated but still co-parenting children with my ex? That’s fine, as long as the Department can see that the prior relationship has ended and your new one meets the partner visa requirements.
❓Can I apply for a partner visa onshore while my divorce is ongoing? Technically, yes, particularly for Subclass 820/801 but it depends on whether you meet the de facto relationship criteria, your relationship evidence, your visa status and your intentions.
❓What if the divorce could never be finalised? This situation becomes more complex but there may still be a way forward. The person would no longer be eligible for a Prospective Marriage visa, but they may still qualify for a partner visa as a de facto partner under Australian migration law. This would depend on factors like whether you’ve lived together for at least 12 months.
Need more detailed answers? These are general guidelines, and migration law is applied to individual facts. For legal advice tailored to your specific case, arrange a 20-minute discovery call to speak with our team.
Jay Son is the Founder of Flow Migration Law and an Australian Immigration Lawyer with over 8 years of experience helping couples and families navigate the Australian partner visa and all family immigration processes. He works closely with each client to simplify the legal complexities and provide clear and strategic guidance tailored to their unique journey.
Jay is also a strong Migration Advocate and is highly experienced in challenging government decisions in relation to Australian immigration law, solving difficult migration matters and visa problems including the ART appeals, visa refusals, visa cancellations, Schedule 3 submissions, health waivers and character concerns.
