# Imminent separation - Can one get an Australia PR, excluding spouse?



## jelli-kallu (Apr 26, 2015)

Experts,

I am on the verge of separation where-in; my wife and I are still living together. I am not even sure that I will be able to to show proof of separation, at this point in time or the near future. Also, I have 65 points (Haven't claimed any points for partner skills). May be I'll take up PTE to make it 75 points, not sure. The questions I have are:

1. Is it mandatory for an applicant to include his spouse in the EOI, as a dependent? If not, what changes do I make in the "family members" section of EOI?
2. Will I even get an invite, given the situation? 
3. If I do get an invite through EOI, will the Australian authorities grant visa to me alone? Or will they expect any proof of separation or is it mandatory that one is divorced, before they grant me visa?

Thanks in advance.


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## jelli-kallu (Apr 26, 2015)

Forum members/experts? Any advice on this situation please??


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## rameshkd (Aug 26, 2011)

1. Is it mandatory for an applicant to include his spouse in the EOI, as a dependent? If not, what changes do I make in the "family members" section of EOI?
Not necessary to include partner/spouse on your visa application but you need to mention you current marital status on your application. 
2. Will I even get an invite, given the situation? 
Yes, invite is based on your skills and not marital status.
3. If I do get an invite through EOI, will the Australian authorities grant visa to me alone? Or will they expect any proof of separation or is it mandatory that one is divorced, before they grant me visa?
" is it mandatory that one is divorced" Seriously!!


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## FAIS (May 8, 2014)

jelli-kallu said:


> Experts,
> 
> I am on the verge of separation where-in; my wife and I are still living together. I am not even sure that I will be able to to show proof of separation, at this point in time or the near future. Also, I have 65 points (Haven't claimed any points for partner skills). May be I'll take up PTE to make it 75 points, not sure. The questions I have are:
> 
> ...


*1. Is it mandatory for an applicant to include his spouse in the EOI, as a dependent? If not, what changes do I make in the "family members" section of EOI?
*

Legally, your relationship is still intact. So you have to mention your status as married and spouse name in your visa application. You can however include her as non-migrating dependent. In this case, you will not have to pay the visa fee.

However, please keep in mind, even if your divorce is finalized after visa application and before medicals, your spouse will still need to go through the medical as all non-migrating dependents have to go through the medical assessment. Also, she has to sign a withdrawal letter if you have included her as the migrating dependent. Most of the divorced spouses do not do this to make the life of their partner difficult. I hope you will get through this easily.

*2. Will I even get an invite, given the situation? *

You are not divorced legally. There is no problem in getting the invite.

*3. If I do get an invite through EOI, will the Australian authorities grant visa to me alone? Or will they expect any proof of separation or is it mandatory that one is divorced, before they grant me visa?*

As mentioned above, your spouse will have to withdraw the application formally. Your case will not be finalized until you give them concrete proof of your relationship status.

This is the case if you are applying her visa as dependent family member.

However, medical is mandatory for all dependents, migrating or non-migrating. 

If you have children, the case is more complicated as you cannot include your children without getting permission from your spouse.

Your children will also have to go through the medical assessment as they are dependents (even if non-migrating).


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## jelli-kallu (Apr 26, 2015)

Thanks FAIS, some more clarifications pls..

OK, so I will include my wife as a "non-migrant dependent" and will not pay the fee. Assuming I also get her medical assessment done, will my visa be granted (Only to me) without a divorce?
And no, we don't have children.

Also, is there any documentation for such scenarios anywhere on the immi website?


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## FAIS (May 8, 2014)

jelli-kallu said:


> Thanks FAIS, some more clarifications pls..
> 
> OK, so I will include my wife as a "non-migrant dependent" and will not pay the fee. Assuming I also get her medical assessment done, will my visa be granted (Only to me) without a divorce?
> And no, we don't have children.
> ...


Yes, you will include your wife as non-migrating dependent. You don't need to pay her fees after that. However, medical assessment is a must requirement in any case. Only your visa will be granted if your relationship hasn't broken down if you do not apply visa for your partner and pay the visa application fee. 

If your relationship breaks down during visa processing, you will have to notify the department about change of circumstances. Since you are not applying for the visa of your partner in the first place, withdrawing her application doesn't make sense. The change in circumstances form will only record your marital status change. You will however need to provide divorce decree (or any other legal equivalent) to the department.

I know all of this because I knew someone who went through the similar situation. His case was much complicated as he applied with family (including children) and then the relationship broke down. 

My suggestion to you, apply for your visa only and then once the CO is assigned, tell him/ her what you are expecting in the near future. He will then ask you to immediately notify the department soon after your relationship breaks down though change in circumstances form.

That's it. Your case is quite straight forward. Your case will become extremely complicated if your wife denies to go through the medical assessment. In that case, I am not aware of what should be the appropriate course of action.

By the way, I would suggest you to get help from a qualified and experienced agent.


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## FAIS (May 8, 2014)

By the way, if you have any chance of reconciliation (I hope you have), then if your visa is granted, you will have to apply her visa separately. That visa also takes time to process.

Better you think about your actions twice before deciding on your future. 

I have seen couples who fight and then do not apply for the visa/ or withdraw the visa application. They make up later and then regret....


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## jelli-kallu (Apr 26, 2015)

Thanks FAIS, I have a few follow-up questions for you pls..

Looks like my wife is keen on getting to Australia and she won't agree to medicals if she realizes, she isn't a part of the visa application. I can think of two options here:

1. Change the EOI to "non-migrating dependent", lie to her all along, get her medicals done and later I inform or she realizes, she wasn't a part of the visa application and I travel alone. 

2. Have her continue to be a "migrating dependent" in the current EOI and apply for visa as well and then I proceed with my travel alone. Morally, I feel this is better than lying! I'm hoping this is the carrot she gets to agree for a divorce, maybe in Australia. However, the questions I have are:

a. Assuming I travel within the IED date, is it mandatory for my wife to also travel within the IED date? If she wishes to not travel, what is the implication to my PR application?
b. Assuming she never travels, will I be able to apply for citizenship, once I complete the requisite stay in Australia?


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## FAIS (May 8, 2014)

jelli-kallu said:


> Thanks FAIS, I have a few follow-up questions for you pls..
> 
> Looks like my wife is keen on getting to Australia and she won't agree to medicals if she realizes, she isn't a part of the visa application. I can think of two options here:
> 
> ...


Option # 1 is unethical. You are lying to your wife. 

Option # 2 is also unethical. You are lying about your relationship status to Australian authorities. You should at least inform your CO about problems in your marriage. He will put a note in your application and ask you at the time of finalization if your relationship is still genuine and continuing. 

Please also keep in mind that if your relationship breaks down in Australia after you two are granted visa, you may not be able to sponsor another partner for another 5 years of your visa grant.

2 (a) - I am considering it a general question and not related to your situation. Yes, your wife will also have to travel to validate her visa. If you travel but she doesn't, your visa will be validated and her visa will be cancelled.

Once the 189 visa has been granted, she can travel alone without you. She will have the same rights as you. She will not need your permission for travelling or not travelling to Australia.

2 (b) No, your citizenship application will not be affected by her visa status. Similarly, if she travels and you don't, you will lose your visa but her visa will remain valid. She can independently file application for citizenship.


I give you two more options.

Option # 3: Get your divorce finalized first because it doesn't seem to me a continuing relationship. 

Option # 4 (Best option): Try to settle problems between you, simultaneously apply for her visa with good intentions that your relationship will continue. We are grown up people and we can solve small problems easily. Leave your future on God. If your relationship doesn't continue even after your best tries, end your relationship. But in the meantime, do not lie to anyone, including your wife, immigration department or anyone else. Just ignore even if you think that she is getting any benefit out of this this situation.


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## Maggie-May24 (May 19, 2015)

FAIS said:


> Please also keep in mind that if your relationship breaks down in Australia after you two are granted visa, you may not be able to sponsor another partner for another 5 years of your visa grant.


This is incorrect. The 5 year limitation for sponsorship of a partner visa only applies if he sponsored a previous partner visa. If you include a spouse as a secondary applicant on a visa such as a skilled migrant visa, this doesn't limit you regarding future partner visa sponsorship.


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## jelli-kallu (Apr 26, 2015)

FAIS said:


> Option # 1 is unethical. You are lying to your wife.
> 
> Option # 2 is also unethical. You are lying about your relationship status to Australian authorities. You should at least inform your CO about problems in your marriage. He will put a note in your application and ask you at the time of finalization if your relationship is still genuine and continuing.
> 
> ...


Thank you and Yes, the whole idea of having applied for EOI with my wife as a migrant dependent is with the hope that all of this can just be a fresh start, who knows. But everyday is becoming a tall order and honestly, I don't know where we are headed..


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## jelli-kallu (Apr 26, 2015)

Maggie-May24 said:


> This is incorrect. The 5 year limitation for sponsorship of a partner visa only applies if he sponsored a previous partner visa. If you include a spouse as a secondary applicant on a visa such as a skilled migrant visa, this doesn't limit you regarding future partner visa sponsorship.


Are you suggesting that if I applied for a skilled migrant (With my wife as a migrant, secondary/dependent), both of us got our grants/visas and our marriage breaks down while we are in Australia, the 5 year limitation of partner sponsorship will not apply? And, let alone re-marriage, I'm not even thinking of courting another girl in the current situation I am in, but I'd like to keep myself informed!


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## Alnaibii (Jul 18, 2013)

I think there is still a limit on sponsoring another partner for 189 - 2 years if I remember correctly.
Anyway, divorcing in AU is not easy, you have to live separately for 12 months before applying for divorce.


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## DavidGouch (Jan 24, 2016)

*Non-migrating Spouse's Medical test*

One spouse (Spouse 1) wants to apply for the PR alone and in the application put the other spouse (Spouse 2) as non-migrating. However, in this situation I realize that even if the other spouse (Spouse 2) is non-migrating he/she still has to go through medicals. But if the other spouse (Spouse 2) fails the medical test then will Spouse 1's PR be denied?


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## Maggie-May24 (May 19, 2015)

DavidGouch said:


> One spouse (Spouse 1) wants to apply for the PR alone and in the application put the other spouse (Spouse 2) as non-migrating. However, in this situation I realize that even if the other spouse (Spouse 2) is non-migrating he/she still has to go through medicals. But if the other spouse (Spouse 2) fails the medical test then will Spouse 1's PR be denied?


Correct, the medical is a one fail/all fail criteria.


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## ozpunjabi (Jun 21, 2015)

Maggie-May24 said:


> Correct, the medical is a one fail/all fail criteria.


I think person above 18 can be excluded now if they fail medicals. You will have to mark them self dependent.


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## DavidGouch (Jan 24, 2016)

Maggie-May24 said:


> Correct, the medical is a one fail/all fail criteria.


Thank you for the clarification.


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## DavidGouch (Jan 24, 2016)

ozpunjabi said:


> I think person above 18 can be excluded now if they fail medicals. You will have to mark them self dependent.


Now I am confused. Which one is correct?


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## Alnaibii (Jul 18, 2013)

Both are correct. If you mark her/him as a non-migrating dependent, then medical is a must. If you can mark her/him as non-dependent, as ozpunjabi said, then it's not on the application anymore.


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## DavidGouch (Jan 24, 2016)

Alnaibii said:


> Both are correct. If you mark her/him as a non-migrating dependent, then medical is a must. If you can mark her/him as non-dependent, as ozpunjabi said, then it's not on the application anymore.



Is it possible to mark a spouse as non-dependent and non-migrating?
Or is this applicable to kids only?


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## Maggie-May24 (May 19, 2015)

DavidGouch said:


> Is it possible to mark a spouse as non-dependent and non-migrating?
> Or is this applicable to kids only?


A spouse is automatically considered to be a dependent. A child over 18 may not be a dependent if they are working, etc.


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## DavidGouch (Jan 24, 2016)

Maggie-May24 said:


> A spouse is automatically considered to be a dependent. A child over 18 may not be a dependent if they are working, etc.


"A spouse is automatically considered to be a dependent." - Sounds weird. I know you did not make the rules but just saying.


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## FAIS (May 8, 2014)

DavidGouch said:


> "A spouse is automatically considered to be a dependent." - Sounds weird. I know you did not make the rules but just saying.


She is right. 

Both partners are considered dependent on each other.


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## dave85 (Sep 8, 2015)

DavidGouch said:


> "A spouse is automatically considered to be a dependent." - Sounds weird. I know you did not make the rules but just saying.


Why does it sound weird? Spouses are dependent on each other. If not, why get married?


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## dave85 (Sep 8, 2015)

jelli-kallu said:


> Thanks FAIS, I have a few follow-up questions for you pls..
> 
> Looks like my wife is keen on getting to Australia and she won't agree to medicals if she realizes, she isn't a part of the visa application. I can think of two options here:
> 
> ...


Apart from the comments by others here, do note that once your wife obtains PR, she has the same PR rights as you. So, whether you go first or she goes first does not matter. Adding on, if she wishes not to travel, it does not affect your application for citizen in the future - you have to only meet your own requirements. 

Finally, you don't get a divorce in Australia - you get it from the country in where your marriage is registered in. 

Honestly, just add your wife as a migrating dependent - you are still legally married to her.


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## dave85 (Sep 8, 2015)

dave85 said:


> Apart from the comments by others here, do note that once your wife obtains PR, she has the same PR rights as you. So, whether you go first or she goes first does not matter. Adding on, if she wishes not to travel, it does not affect your application for citizen in the future - you have to only meet your own requirements.
> 
> Finally, you don't get a divorce in Australia - you get it from the country in where your marriage is registered in.
> 
> Honestly, just add your wife as a migrating dependent - you are still legally married to her.


To correct myself, you CAN get a divorce in Australia, provided you are a PR and prove that Australia is your permanent home. To be granted the divorce you will also need to prove that you and your partner have been living separately for at least 12 months.


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## bevvyjr (Jul 14, 2017)

Guys, I need an advice.

I got an invitation to apply for 189 visa, there were both me and my de-facto partner in the EOI.I haven't applied for the visa itself yet and circumstances have dramatically changed and I'll apply for visa without a partner (we're breaking up).

I have 2 options:

1) Apply for a visa as a couple and immediatelly file form 22 ("Notification of change in circumstances"). 
2) Ignore current invitation and apply a new EOI but without a partner. I think I have enough points to get another invitation in August. Thus, I won't pay fee for the partner and avoid possible pain in the ass with all these forms and probable increase in processing time.


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## bevvyjr (Jul 14, 2017)

In other words, Isn't that be considered fraudulent to file another EOI with the same ANZSCO code after getting an invitation?


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