Can you get divorced while waiting for your PR to be approved?

[Andrew1980]

Hello

Strange one but important so looking for some honest advice please...

Our 186 visa (transfer stream) was formally lodged on 1st July by my employer.   We have been in Oz / QLD for 18 months now on a 482 visa before my employer formally lodged our 186 application last month.   Note I am primary sponsored holder and my wife / 2 kids are included.

Sadly during our time in Oz we have grown apart so looking to divorce (amicably).

My question is - can we apply for divorce while we await the 186 process?  Or is it better to wait until we get PR formally before we apply for a divorce?  I.e. can the change in marriage circumstance impact the 186 approvals?  Naturally we will wait for PR before changing our marriage setup if there is any risk.   It's just I am seeing there may be a c12 month wait to be approved.

The other option would be to move into x2 seperate houses while we wait for PR, then divorce after PR is approved.   Again, is that allowed?   Do you have to declare the x2 new addresses to the process? (my employer is processing on our behalf).  or dare is say just not declare it?

Finally, i assume if we applied for divorce after the 186 for PR is approved, there should be no risk of my wife and kids getting it revoked??

Complex situation.  Any info greatly appreciated please.

Thankyou

[paulhand]

I suggest that you get some professional help, specific to your situation, as you are running a number of risks here. It’s way too complicated to discuss on a forum. 

[Nemesis]

8 hours ago, Andrew1980 said:

Hello

Strange one but important so looking for some honest advice please...

Our 186 visa (transfer stream) was formally lodged on 1st July by my employer.   We have been in Oz / QLD for 18 months now on a 482 visa before my employer formally lodged our 186 application last month.   Note I am primary sponsored holder and my wife / 2 kids are included.

Sadly during our time in Oz we have grown apart so looking to divorce (amicably).

My question is - can we apply for divorce while we await the 186 process?  Or is it better to wait until we get PR formally before we apply for a divorce?  I.e. can the change in marriage circumstance impact the 186 approvals?  Naturally we will wait for PR before changing our marriage setup if there is any risk.   It's just I am seeing there may be a c12 month wait to be approved.

The other option would be to move into x2 seperate houses while we wait for PR, then divorce after PR is approved.   Again, is that allowed?   Do you have to declare the x2 new addresses to the process? (my employer is processing on our behalf).  or dare is say just not declare it?

Finally, i assume if we applied for divorce after the 186 for PR is approved, there should be no risk of my wife and kids getting it revoked??

Complex situation.  Any info greatly appreciated please.

Thankyou

Definitely do as Paul Hand suggests. 

And as officers from the immigration dept are known to browse these forums, and your username is kind-of identifiable, I would be careful what else you post in public  

[Marisawright]

@Andrew1980, bottom line -- get onto a good migration agent pronto, before you do anything.  Paul Hand (who posted above) is a good choice.  Make sure they're MARA registered, whoever you choose.

I say that because your wife is already at risk of losing her right to live in Australia.  She can't be on your 482 visa if you're separated.   And if you pretend you're together, and include her in your 186 application, you'll be committing fraud.  

[Andrew1980]

Thanks all for the comments.   Will take it away for professional advice.

Just to confirm, we are still legally married and living together as a family during the approval process.  There is no intention to change our circumstances (every day we are working through things).  Thanks

[CJT]

2 hours ago, Marisawright said:

@Andrew1980, bottom line -- get onto a good migration agent pronto, before you do anything.  Paul Hand (who posted above) is a good choice.  Make sure they're MARA registered, whoever you choose.

I say that because your wife is already at risk of losing her right to live in Australia.  She can't be on your 482 visa if you're separated.   And if you pretend you're together, and include her in your 186 application, you'll be committing fraud.  

Would you happen to know out of curiosity what happens if the wife loses the right to stay in the country and there are children involved?

[Nemesis]

46 minutes ago, CJT said:

Would you happen to know out of curiosity what happens if the wife loses the right to stay in the country and there are children involved?

She needs a new visa or will have to leave. Unless the father gives her permission to take the children they can stay with him.

That's the short version, a good agent may of course be able to give better advice, and find a way to work things out so she can stay, but she would have no automatic right to remove the children from their "habitual residence" 

Edited August 12 by Nemesis

[Marisawright]

4 hours ago, Andrew1980 said:

Thanks all for the comments.   Will take it away for professional advice.

Just to confirm, we are still legally married and living together as a family during the approval process.  There is no intention to change our circumstances (every day we are working through things).  Thanks

That's not what you said in your first post, though.  

Having a marriage certificate isn't what matters.  What matters is your relationship.  For instance, let's say you'd met someone else, and you were already living with the girlfriend.  In that case, the girlfriend would be the one who's entitled to be on your 186 visa, not your wife.  

As Paul said, it's complicated.  good luck.

[CJT]

3 hours ago, Nemesis said:

She needs a new visa or will have to leave. Unless the father gives her permission to take the children they can stay with him.

That's the short version, a good agent may of course be able to give better advice, and find a way to work things out so she can stay, but she would have no automatic right to remove the children from their "habitual residence" 

Thanks, that was what I thought (but didn't want to give incorrect advice)  I wanted to tactfully point out the situation could potentially become devastating for the wife and children if they were not aware already.   I have seen what happens when relationships break down and one parent gets "trapped" in the country because of the children - this looks like an even worse scenario of forced separation and to be avoided at all costs.

[Nemesis]

5 hours ago, CJT said:

Thanks, that was what I thought (but didn't want to give incorrect advice)  I wanted to tactfully point out the situation could potentially become devastating for the wife and children if they were not aware already.   I have seen what happens when relationships break down and one parent gets "trapped" in the country because of the children - this looks like an even worse scenario of forced separation and to be avoided at all costs.

Exactly. Once he children are "habitually resident" in Australia its very hard for one parent to remove them permanently. 

As I said I certainly am no expert on this but there are plenty of cases on this and other forums which talk about how the Hague Convention makes things very complex.

[Tulip1]

11 hours ago, Andrew1980 said:

Thanks all for the comments.   Will take it away for professional advice.

Just to confirm, we are still legally married and living together as a family during the approval process.  There is no intention to change our circumstances (every day we are working through things).  Thanks

In your own words you have grown apart and are looking to divorce.  That statement says you have every intention of changing your circumstances, by definition, your circumstances have already changed.  You even ask if you can apply for a divorce while going through the visa process or ‘is it better to wait’ speak to an agent asap.  I get your circumstance but you can’t mess about with wording to suit your agenda.  You have made a decision to separate and divorce.  To keep that quiet in the hope a future visa goes through is not good.  

Edited August 12 by Tulip1

[Ausvisitor]

I'm sure the OP isn't looking to do anything dodgy, just looking for an answer to the multi-dimensional question that has many knock on effects.

The only advice I can give is get some professional advice, as getting PR is only the start of the journey, until you become a citizen the AU gov can remove your visa and all it takes is a disgruntled ex-partner (who has already returned to the UK) or an annoyed next-girlfriend to report this and you are in a world of pain.

You obviously don't need to stay together until you make it to citizenship but decisions you make now to smooth over the next few months while you await a PR grant will stay as shadows until you make it to citizenship.

Spend a few quid/dollars now to save a lot of angst and tears later. And good luck and thoughts with your kids, as a product (as many are) of a broken home it's tough on the kids even when nothing is changing but where you are in a foreign country and the decision might mean one half decides to go home it's so much more magnified so make sure you look after them...

[Marisawright]

1 hour ago, Ausvisitor said:

I'm sure the OP isn't looking to do anything dodgy,

I'm sure he wasn't.  It's clear from his first post that he was just asking an innocent question, and had no idea what a dodgy situation he was actually in.  I hope it all works out for him.

[Marisawright]

On 11/08/2024 at 22:19, Andrew1980 said:

Finally, i assume if we applied for divorce after the 186 for PR is approved, there should be no risk of my wife and kids getting it revoked??

Just a note about this:  in order to apply for divorce in Australia, you need to be living separately for at least a year (that might be in the same house, but you need to be living separate lives, e.g. separate finances, separate rooms etc).    You will need to have proof of the exact date you began living separately.  Usually you'll do that by sending each other an email or letter confirming the arrangements. 

Now here's the catch, for you, if you decide to stay together until the 186 is granted.  Your separation date will have to be a suitable period after your 186 is granted, otherwise it'll be obvious to the authorities that your wife was granted the 186 under false pretences. So you're not going to be able to start divorce proceedings until a year or so after you get PR.

Edited August 13 by Marisawright

[Ausvisitor]

5 hours ago, Marisawright said:

Just a note about this:  in order to apply for divorce in Australia, you need to be living separately for at least a year (that might be in the same house, but you need to be living separate lives, e.g. separate finances, separate rooms etc).    You will need to have proof of the exact date you began living separately.  Usually you'll do that by sending each other an email or letter confirming the arrangements. 

Now here's the catch, for you, if you decide to stay together until the 186 is granted.  Your separation date will have to be a suitable period after your 186 is granted, otherwise it'll be obvious to the authorities that your wife was granted the 186 under false pretences. So you're not going to be able to start divorce proceedings until a year or so after you get PR.

That's a bit of a kicker....

Any reason why (as I presume they are UK citizens) they couldn't just apply for a divorce in the UK courts, there is no requirement to actually attend in-person if the process is uncontested and amicable?

This would remove the one year time constraint in Australia that you mention...

Maybe we are getting too deep here for a web forum?

[Marisawright]

13 minutes ago, Ausvisitor said:

Any reason why (as I presume they are UK citizens) they couldn't just apply for a divorce in the UK courts, there is no requirement to actually attend in-person if the process is uncontested and amicable?

This would remove the one year time constraint in Australia that you mention...

Good idea.  I didn't realise there was no waiting period before you can apply for divorce in the UK.  However, it's only going to cut months, not the whole year.   From my experience, divorce in Australia is pretty fast if it's amicable (3 months or so).  Whereas in the UK, after you've submitted the application, there's a compulsory waiting period of at least 20 weeks before a conditional order is granted, then at least another 6 weeks before the decree nisi. 

[Nemesis]

26 minutes ago, Ausvisitor said:

That's a bit of a kicker....

Any reason why (as I presume they are UK citizens) they couldn't just apply for a divorce in the UK courts, there is no requirement to actually attend in-person if the process is uncontested and amicable?

This would remove the one year time constraint in Australia that you mention...

Maybe we are getting too deep here for a web forum?

One of the parties to the divorce needs to be "normally resident" in the UK (unless things have changed in the last couple of years). Citizenship isn't enough. 

[Raul Senise]

On 11/08/2024 at 22:19, Andrew1980 said:

Hello

Strange one but important so looking for some honest advice please...

Our 186 visa (transfer stream) was formally lodged on 1st July by my employer.   We have been in Oz / QLD for 18 months now on a 482 visa before my employer formally lodged our 186 application last month.   Note I am primary sponsored holder and my wife / 2 kids are included.

Sadly during our time in Oz we have grown apart so looking to divorce (amicably).

My question is - can we apply for divorce while we await the 186 process?  Or is it better to wait until we get PR formally before we apply for a divorce?  I.e. can the change in marriage circumstance impact the 186 approvals?  Naturally we will wait for PR before changing our marriage setup if there is any risk.   It's just I am seeing there may be a c12 month wait to be approved.

The other option would be to move into x2 seperate houses while we wait for PR, then divorce after PR is approved.   Again, is that allowed?   Do you have to declare the x2 new addresses to the process? (my employer is processing on our behalf).  or dare is say just not declare it?

Finally, i assume if we applied for divorce after the 186 for PR is approved, there should be no risk of my wife and kids getting it revoked??

Complex situation.  Any info greatly appreciated please.

Thankyou

It will depend on the specific circumstances of your case as the definition of a member if the family unit has a number of different definitions, depending on visa type and specific circumstances.