The sponsor who sat down with us ran a transport company, had been married for two decades, and had a second family overseas under a religious marriage. Three advisers had told him to divorce. The migration team had a different first question: has the first marriage ended in fact? The commercial team had a second one: who inherits the company if it has not? Both are answered below.
In short: Australian law recognises only the first marriage, so a second partner can be sponsored only as a de facto partner, and only where the earlier marriage has genuinely ended. A court divorce is not the legal test. In Cabsari (Migration) [2021] AATA 1432 the Tribunal found exclusivity met from the date of a real separation, five years before the divorce. The visa charge is $11,710 and a review costs $3,727.
Which file is yours?
What is the position of the earlier marriage today?
The law we apply, and the case that applied it
Section 88D(2)(a) of the Marriage Act denies recognition to an overseas marriage where either party was already married, and section 23B voids such a marriage made in Australia. The second couple therefore cannot be spouses under section 5F of the Migration Act. They can only be de facto partners under section 5CB, which carries the same requirement of commitment to the exclusion of all others.
An Indonesian applicant married an Indonesian Australian man under Islamic law in 2008 while he was still legally married. She lodged onshore as his de facto partner in 2014, was refused twice, and won in the Federal Circuit Court because an airport note calling her a second wife had never been put to her. In 2021 a second Tribunal found the couple were de facto partners when she lodged and spouses when it decided. It said only the first marriage in a polygamous situation may be recognised, at paragraph 38, and found exclusivity met from June 2013, at paragraph 186, because the sponsor had separated in February 2013 and his first wife said so in a statutory declaration.
The seven years in one view
- 2008Religious marriage in Indonesia. Lawful there, not a marriage for Australian law.
- 2013The sponsor separates from his first wife. No divorce, for his young son's sake. The couple's declared de facto commencement is June 2013.
- 2014Onshore de facto application lodged. An airport note from the previous December sits unseen on the file.
- 2015 to 2017Refused by the delegate on the papers. Affirmed by the first Tribunal on exclusivity.
- 2018Federal Circuit Court quashes the first decision. Divorce order in June.
- 2019Civil marriage in Melbourne.
- 2021Second Tribunal remits for grant: de facto at lodgement, spouse at decision.
Four strands of evidence turned the file: the first wife's declaration, address documents for each household, the sponsor's early written reason for not divorcing, and fourteen community declarations. Our conclusion for every second marriage file: the former spouse's own declaration is the most persuasive document available, and the sponsor's reason must be written down at lodgement, not reconstructed at a hearing.
The commercial file beside the migration file
A sponsor who has separated without divorcing has a legal spouse with live rights. We review three sets of documents while the migration team builds the relationship evidence.
The will and the superannuation nomination
A will made during the first marriage usually leaves the estate to the first spouse, and a binding death benefit nomination made then still points at her. Neither is revoked by separation. In Cabsari the sponsor had nominated the applicant for the whole of his superannuation, and the Tribunal gave that document weight as a legal obligation owed to her. A new will and nomination therefore protect the second partner and evidence the commitment at the same time.
The company and the family home
A legal spouse can seek a property settlement under the Family Law Act while the marriage subsists, and for twelve months after a divorce. Company shares, director's loans and the home are all in the pool. Where the separation is real, we advise on a binding financial agreement so the business is not divided after the visa is granted.
Separation under one roof
The Family Law Act allows twelve months of separation under one roof to found a divorce, proven by affidavit that the parties lived separate lives. It is a true account of a broken marriage, not a device. A sponsor who describes his marriage as happy cannot swear that affidavit, and we will not draft it for a visa purpose. Sworn to the Department, the same facts would be false information under public interest criterion 4020.
What goes into the file
Tick what you can produce.
Test yourself on the file
1. A sponsor is still legally married but has lived apart from his wife for ten years. Can he sponsor a de facto partner?
Yes, if the separation is proven. Cabsari found exclusivity met five years before the divorce order. The evidence, not the decree, decides it.
2. A couple married religiously in 2019 while he was still married, divorced in 2024 and married civilly in 2025. How do they lodge?
As spouses, on the civil certificate. The 2019 ceremony is lodged as the date their families recognised the relationship, which goes to duration and social recognition.
3. Home Affairs granted citizenship by descent to the sponsor's children with his second partner. Does that prove the relationship was accepted?
No. Citizenship by descent requires an Australian citizen parent and nothing more. Exclusivity was never tested.
4. Can the couple register their relationship in Victoria to avoid the 12 month rule?
Not while either of them is married to someone else. The Relationships Act requires that neither person is married. The twelve months must be proven with documents.
5. The sponsor visits his first wife's home every weekend. Is that cohabitation?
Not necessarily. In Cabsari the visits were accepted as parenting time once both former spouses explained their purpose. State the frequency and the reason in the statements.
The migration team runs the relationship file and the commercial team reviews the will, the nomination and the company. See our migration and commercial practice pages, and two earlier notes: a conviction on either side of a partner visa and the partner visa charges for 2026-27. To put your dates in front of us, contact the firm.
Frequently asked questions
Is a polygamous marriage recognised for an Australian partner visa?
No. Only the first marriage in a polygamous situation can be recognised. The Tribunal in Cabsari said so at paragraph 38, applying section 88D(2)(a) of the Marriage Act. The second couple are assessed as de facto partners.
Does the sponsor have to divorce before sponsoring a second partner?
No. The legal test is a mutual commitment to the exclusion of all others, which a genuinely separated sponsor can meet. In Cabsari exclusivity was found from June 2013 and the divorce order came in 2018. What cannot be done is to claim a separation that has not happened.
What does a separation without divorce do to the sponsor's business?
The legal spouse keeps rights against the estate, the superannuation and the property pool, including company shares. We review the will, the death benefit nomination and any shareholder documents, and advise on a binding financial agreement where the separation is real.
Can we register the relationship to avoid the 12 month rule?
Not in Victoria while either person is married to someone else. The twelve months of de facto relationship before lodgement must be proven with documents, or compelling and compassionate circumstances shown.
What does the partner visa cost in 2026-27?
The main applicant charge is $11,710 from 1 July 2026. A review at the Administrative Review Tribunal costs $3,727. Our professional fee is fixed and quoted before work starts.
Cabsari (Migration) [2021] AATA 1432 read in full on 12 October 2026 on AustLII; it is a single Member decision and not binding. Figures verified against Home Affairs visa pricing as at 1 July 2026.
General information as at 12 October 2026. The sponsor described in the opening is a composite, not a client. Not legal advice. Whether an earlier marriage has ended in substance is a question of evidence in each case, and family law rights depend on the documents, so obtain advice before lodging or signing anything.