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What Happens When You Get Divorced While Applying for Permanent Residency?

23rd March 2021

What Happens When You Get Divorced While Applying for Permanent Residency?

The end of a relationship can be stressful and painful, but it's at least comforting to know that you aren't alone. In just one year, nearly 50,000 divorces can take place across Australia. Each and every one of these cases is unique and complex, but if you're residing in Australia on your partner's visa or citizenship, things get even more convoluted.

Today, we're going to tackle what happens to your residency application or your current residency status while going through an international divorce. Read on to learn whether or not you can remain in Australia after the finalisation of your divorce.

Can I Apply for Permanent Residency When My Divorce Case Is Pending?

In some situations, you will be able to apply for permanent residency as your international divorce case is pending.

If you were previously attached to your spouse's status as an Australian citizen or PR, you will need to leave the country about a month after your divorce is finalised. However, there are specific instances in which you will be eligible to stay in Australia.

The first is in a situation of domestic violence. If you are able to prove that you or a child that you and your partner have are a victim of family abuse, you may be able to stay in Australia even after the end of the relationship. There is, however, a fairly extensive process that you will need to undergo in order to file such a claim.

Speaking of children, you may apply for Australian PR if you and your ex-spouse have shared parental responsibility. If you came to Australia on a temporary or prospective marriage visa, or if you came as a dependent on your spouse's Visa, you likely will be able to stay in Australia post-divorce.

In these situations, you will need to apply for a permanent residency visa of your own. Doing this while the divorce is pending is a good way to ensure that you are allowed to legally remain in the country. However, many people also choose to wait and begin this process after the divorce is finalised so that they can ensure that their lawyers consistently have all relevant information.

Australian Divorce Laws for Permanent Residents

If you and your ex-partner were married in Australia, you can get a divorce in the nation. If you and your spouse reside in Australia as PRs and have for over a year or if you are a dependant on your partner's citizenship or PR visa, you also qualify to get a divorce in Australia.

But what about when you don't regularly reside in Australia?

There are three conditions under which you can get a divorce in Australia despite your marriage happening overseas:

If any of these situations are the case (it does not need to be all three), you can get a divorce in Australia.

For permanent residents, this means that, yes, you can get a divorce in Australia. Whether or not you can remain, however, is circumstantial.

Can You Get a Divorce Without the Other Person Signing in Australia?

No matter what your visa situation is, you can get a divorce in Australia without the other person signing the papers.

However, you may need to prove that you attempted to get a signature.

At the minimum, you will need to serve a copy of the divorce application to your former spouse. Additionally, you as the applicant will need to prove that you served this copy to them and that it was received. This generally can be proven by filing an Affidavit of Service with the divorce court.

If your ex-spouse disagrees with the information on the application or objects to the divorce, they will be able to contest it. However, the circumstances in which this is possible are few and far between. In order to stop a divorce from going through, your ex-spouse will need to prove that a) you have not been separated for a full year, or b) the court does not have jurisdiction.

Assuming that there are no children in your marriage, the divorce will go through even without you attending a hearing. After one month and one day, your divorce will be finalised.

Child Support When Parents and Children Live Outside Australia

When it comes to child support for parents and children residing outside of Australia, whether or not this is a possibility depends on your specific case. It also is heavily dependent on where each parent lives.

If you live in Australia and the other parent is outside it, you may be able to apply for a child support assessment to register a maintenance liability. If you're the parent residing outside Australia and want to receive child support, you can do so assuming that you live in a reciprocating jurisdiction. On the flip side, you may need to pay child support if your ex-spouse is staying in Australia and you are the one living in a reciprocating jurisdiction.

For a full list of reciprocating jurisdictions, click here.

So, What Happens When You Get a Divorce While Applying for PR?

The answer to this question is that it truly depends.

If you and your partner have resided in Australia for over a year, your permanent residency application will likely be able to proceed as you want it to. Considering Australia your home is a good reason to stay, and if you have been here for many years, the government is unlikely to make you uproot your whole life without considering your application.

However, if you and your partner haven't resided in Australia for a sufficient length of time, your PR application is unlikely to go through post-divorce.

Please note the contents of this post is information only and not legal advice.  If you require legal advice it is best to contact one of our lawyers who can review your particular circumstances and then provide tailored advice according to your needs.


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