Applying for a Partner Visa Before Your Divorce Is Final
Partner visa applicants who are not yet divorced can still apply as de facto partners once separated from their spouse, but a new marriage is valid only after a divorce order, which in Australia requires 12 months of separation as at September 2026.
A divorce order in Australia takes effect one month and one day after the divorce is granted, and proof of divorce is downloaded from the Commonwealth Courts Portal, according to the Federal Circuit and Family Court of Australia.
| Partner visa route | Open while a previous marriage still exists? | What must be true | Provision |
|---|---|---|---|
| De facto partner (subclass 820 or 309) | Yes, once the earlier relationship has ended in fact | You and your partner are committed to a shared life to the exclusion of all others, in a genuine and continuing relationship | s 5CB Migration Act; reg 1.09A |
| Spouse (subclass 820 or 309) | No, until the earlier marriage is dissolved | You are married to your partner under a marriage valid for the Act | s 5F Migration Act; s 23B(1)(a) Marriage Act |
| Prospective marriage (subclass 300) | Only if the marriage could lawfully take place | There is no impediment to the marriage in Australian law when the visa is decided | cl 300.221A |
| Registered relationship (used to set aside the 12-month de facto rule) | Not in NSW. Other states and territories set their own rules | NSW requires both partners to be "not married to each other or anyone else" | NSW Government relationship register guidance |
Checked 23 September 2026.
Can you get a de facto partner visa while still married?
Yes, if the facts fit the de facto definition. Section 5CB of the Migration Act 1958 (Cth) defines a de facto relationship as one where two people who are not married to each other have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, and they live together or do not live separately and apart on a permanent basis. It does not say that neither person may be married to someone else. The words "to the exclusion of all others" are why the ending of the earlier relationship in fact matters.
The Department weighs the whole relationship against the factors in reg 1.09A of the Migration Regulations 1994 (Cth): the financial aspects, the household, the social aspects and commitment. The de facto partner visa page explains the test and the 12-month rule.
Whether your separation meets the de facto definition is a question about your own application. Advice on it is immigration assistance as defined in s 276 of the Migration Act 1958 (Cth), which under s 280 only a registered migration agent or an Australian legal practitioner may give. Divorce and property questions are for a family lawyer.
Can you marry your partner visa sponsor before your divorce is final?
No. Under s 23B(1)(a) of the Marriage Act 1961 (Cth), a marriage is void if either party is lawfully married to someone else at the time. Going through a marriage ceremony while already married is the offence of bigamy under s 94. A void marriage cannot support a spouse application, because s 5F of the Migration Act requires a marriage that is valid for the Act.
What if the partner visa sponsor is the one still married?
The same rules apply in both directions. Section 23B(1)(a) voids a marriage where either party is already married, so a sponsor who is not yet divorced cannot validly marry you either. The de facto definition in s 5CB applies to the couple as a whole, so it is open to a sponsor who is separated but not divorced, just as it is to an applicant.
How do you prove a previous marriage has ended for a partner visa?
Divorced in Australia
The divorce order is the proof. The Federal Circuit and Family Court of Australia says you can download it free from the Commonwealth Courts Portal from the day after the divorce is finalised, if it was finalised after 13 February 2010. For an earlier divorce, you request a search online for a A$30 fee.
Divorced overseas
Use the divorce document issued where the divorce was granted. The Australian court does not hold records of overseas divorces. Section 104 of the Family Law Act 1975 (Cth) recognises an overseas divorce on set grounds, for example where, when the proceedings began, the respondent was ordinarily resident in or a national of that country, or either spouse was domiciled there. The site's translations page covers documents that are not in English. Where an overseas marriage and an overseas divorce meet, the page on overseas, online and proxy marriages explains how a foreign marriage is treated.
Previous spouse died
The death certificate shows the marriage has ended.
How long does a divorce take before you can marry for a partner visa?
This is family-law time, not visa time:
- Separation: at least 12 months before you can file (s 48(2) Family Law Act 1975 (Cth)). The court says you must have been separated for "12 months and 1 day or longer".
- Filing to hearing: the court's own timetable. It does not publish a fixed period on the pages checked.
- Hearing to effect: one month after the order (s 55), which the court describes as one month and one day.
Questions about applying for a partner visa before a divorce is final
Does separation under one roof count?
For divorce, yes. Section 49(2) of the Family Law Act 1975 (Cth) allows a couple to be separated while living in the same home, and the court asks for affidavit evidence when that happens. For the migration de facto test, the question is whether you and your new partner meet s 5CB.
Do you need to be divorced to apply as de facto partners?
No. The de facto definition does not require it.
Is there a waiting period after a divorce?
The Migration Act 1958 (Cth) sets none. Sponsorship limits under reg 1.20J are separate and are covered on the site's sponsor page.
Partner visa relationship types and the requirements
- Most people in this position apply by the de facto route. The de facto partner visa page covers the test and the 12-month rule.
- Every other criterion is under partner visa requirements.
An application made while an earlier marriage still exists is more likely to succeed if a registered migration agent or an Australian legal practitioner prepares it. Whether the earlier relationship had ended in fact goes to the "exclusion of all others" test, and choosing a relationship type your legal status does not allow can make an application fail from the start. No one can promise a grant, but a professional can check that the route you choose matches your legal status on the day you lodge.
Questions people ask
Do you need to be divorced to apply for a partner visa?
Not for the de facto route. Section 5CB of the Migration Act 1958 (Cth) asks whether you and your partner have a mutual commitment to a shared life to the exclusion of all others and a genuine and continuing relationship. It does not require that neither of you is married to someone else. To apply as a spouse, the earlier marriage must first be ended, because a new marriage is void while an earlier one exists.
How do I get proof that I am divorced in Australia?
The Federal Circuit and Family Court of Australia says a divorce is finalised one month and one day after it is granted. You can then download the divorce order free of charge from the Commonwealth Courts Portal, from the day after it is finalised, if the divorce was finalised after 13 February 2010. Older records can be requested online for a A$30 fee.
Does Australia recognise an overseas divorce?
Section 104 of the Family Law Act 1975 (Cth) recognises a divorce granted under the law of another country on set grounds, for example where the respondent was ordinarily resident in or a national of that country, or either spouse was domiciled there, when the proceedings began. The court in Australia does not hold records of overseas divorces, so proof comes from the court or authority that granted it.
Is there a waiting period after a divorce before you can be sponsored?
The Migration Act 1958 (Cth) sets no waiting period after a divorce. Separate limits apply to how many partners a sponsor can sponsor and how often, under reg 1.20J of the Migration Regulations 1994 (Cth).
Sources
Primary sources this page was checked against on 23 September 2026.
- Migration Act 1958 (Cth), ss 5CB and 5F (compilation 4 June 2026) www.legislation.gov.au
- Marriage Act 1961 (Cth), ss 23B and 94 (compilation 28 March 2026) www.legislation.gov.au
- Family Law Act 1975 (Cth), ss 48, 49, 55 and 104 www.legislation.gov.au
- Federal Circuit and Family Court of Australia, Proof of divorce (divorce order) www.fcfcoa.gov.au
- Federal Circuit and Family Court of Australia, How do I apply for divorce? www.fcfcoa.gov.au
- NSW Government, Relationship register, updated 30 July 2026 www.nsw.gov.au