The refusal letter says the relationship is not “to the exclusion of all others”. Nothing else in the file is criticised. Your sponsor separated from his first wife years ago, but the marriage was never dissolved, and a case officer has decided that a man who is still married cannot be committed to you. In 2021 the Administrative Appeals Tribunal spent 213 paragraphs on exactly that file and reached the opposite conclusion. Cabsari (Migration) [2021] AATA 1432 is the decision to read before you lodge, and before you answer a refusal.
Short answer: A second marriage made while either person was still married to someone else is never a valid marriage for the Migration Act. Your application runs as de facto, and it stands or falls on one element: a mutual commitment to a shared life to the exclusion of all others. A court divorce is not the test. Evidence that the earlier marriage ended in substance is. The visa charge is $11,710 either way.
Three situations, three different answers
Which of these is yours decides everything that follows. Click your tab.
This was the Cabsari file. The sponsor left his first wife in February 2013 and stayed legally married for his young son’s sake. The Tribunal accepted a mutual commitment to the exclusion of all others from June 2013, five years before the divorce order. Therefore the visa is open as a de facto application. The work is proving the separation: the former spouse’s own statutory declaration, separate addresses year by year, and the sponsor’s written reason for not divorcing.
If the sponsor still lives as husband to his first wife, the partner visa is not open. Exclusivity fails for both the spouse and the de facto definitions. Cabsari does not help, because it was won on a real separation. A separation filed in the Family Court while the marriage continues is a false statement, and a false statement to the Department engages public interest criterion 4020 with a three year bar. Look at the second partner’s own skills for a work or skilled visa instead.
Some countries make divorce impossible. The Philippines has none. An applicant in that position cannot be a spouse, so she lodges as a de facto partner and proves from her side that the earlier marriage ended: when, where each person has lived since, and why no decree exists. The same evidence list applies, with the roles reversed.
The two time points, and the definition at each
The onshore partner visa is tested when you lodge and again when the Department decides. In Cabsari the applicant met a different definition at each point. Consequently the couple never had to lodge a second application.
| Element | At lodgement, 1 September 2014 | At decision, 13 May 2021 |
|---|---|---|
| Definition | De facto partner, section 5CB | Spouse, section 5F |
| Valid marriage | No. The 2008 Islamic marriage was concurrent with his first | Yes. Divorce order June 2018, civil marriage January 2019 |
| Exclusion of all others | Met. Separation from the first wife since February 2013 | Met |
| 12 month rule, regulation 2.03A | Met. Relationship proven on 31 August 2013 | Not required for a spouse |
| Government charge | $11,710 for the main applicant in 2026-27. A Tribunal review costs $3,727 | |
If a divorce and a civil marriage happen during processing, file both and ask for the time of decision assessment to be made as spouses. Our partner visa page explains the two stages of the 820 and 801.
What the first Tribunal got wrong
The same documents produced two opposite decisions four years apart. The first Tribunal relied on an airport officer’s note. On 30 December 2013 an officer at Perth airport had sighted the applicant’s Indonesian marriage book, recorded her as the sponsor’s second wife, and written that the relationship was “not mutually exclusive as husband already married”. Nobody put that note to her for two years, so the Federal Circuit Court quashed the first decision. The second Tribunal then read the hearing transcript. She had not changed her evidence. A bond receipt and a joint bank statement put the couple in Melbourne in January 2015, while a bank statement put the first wife in Cairns until 2016. The word “divorce” had come through an interpreter. Above all, the first wife had sworn that the marriage was over and that his visits were to see their son. Every one of those points is a document you can put in your own file today.
Build the file in this order
- Week 1Confirm every earlier marriage of both of you, with dates and countries. This decides whether you lodge as spouses or as de facto partners. Lodging as spouses on a religious certificate fails on validity and leaves the de facto evidence missing.
- Week 2Obtain the former spouse’s statutory declaration: separation date, separate addresses, no relationship, visits are for the children. If that person will not cooperate, gather a parenting plan, child support records or a family lawyer’s letter instead.
- Week 3Write the sponsor’s own statement. Why there is no court divorce, the children’s ages, when a divorce is intended, and the cultural reason if there is one. The Tribunal preferred the sponsor’s early written statement over his muddled oral evidence.
- Week 4Fix the date twelve months before lodgement and prove the relationship existed on it. In Cabsari that was bank transfers labelled with both names and phone invoices showing daily calls while the couple were in different countries.
- LodgementDisclose the religious marriage yourself, with a translation and two lines on its legal status. Describe visits to the former household as co-parenting, with frequency and purpose.
Registering the relationship, which removes the 12 month rule, is not available in Victoria while either of you is married to someone else. The 12 month rule and registration article explains how the twelve months are counted.
Your evidence checklist
Tick each item as it goes into the file. This list saves in your browser.
Test yourself
Five questions from the decision. Decide your answer, then open each one.
1. The couple married under Islamic law in 2008 while he was still legally married. For the Migration Act, is that a marriage?
No. Section 88D(2)(a) of the Marriage Act denies recognition to an overseas marriage where either party was already married. The Tribunal said only the first marriage in a polygamous situation can be recognised. The couple can only be de facto partners (paragraph 38).
2. Did the sponsor need a court divorce before the Tribunal could find exclusivity?
No. He stayed legally married until July 2018. The Tribunal found exclusivity from June 2013 because the separation was real and the first wife confirmed it (paragraphs 99 and 186).
3. The applicant told the first hearing that he “divorced” in February 2013. Did that damage her credibility?
Not in the end. The second Tribunal noted the evidence came through an interpreter and that the word may have meant separation or a religious divorce. Nevertheless, use the right word from the start (paragraph 79).
4. Why did the Federal Circuit Court send the case back?
The airport officer’s note was adverse information the Tribunal relied on without putting it to her under section 359A. After any refusal on the relationship, ask for the Department’s file (paragraph 13).
5. She lodged as a de facto partner. By the hearing she was civilly married. What happened?
The Tribunal found her a de facto partner at lodgement and a spouse at decision. The same application carried through, with no second charge (paragraphs 196 to 200).
Before you lodge, or before you answer
A second marriage file is decided on the earlier marriage, not the new one. If the earlier marriage ended in substance, the evidence above wins the point. If it did not, nothing on paper will, and the honest advice is a different visa. Either way, get the answer before the $11,710 is paid. Use the booking button on this page, or contact us with the dates of every marriage and separation, and we will tell you which definition you meet.
Frequently asked questions
My partner is still legally married overseas. Can he sponsor me at all?
Yes, as a de facto partner, if that earlier marriage has ended in substance. The Department tests whether he has a mutual commitment to a shared life with you to the exclusion of all others. Separation proven with evidence satisfied the Tribunal in Cabsari without a divorce.
Should we hide the religious marriage certificate?
No. Disclose it with a translation and a short explanation of its legal status. In Cabsari the Department found the marriage book at an airport and built a note on it that drove two refusals. Disclosed, the ceremony is evidence of when your families recognised the relationship.
Can we register our relationship to skip the 12 month rule?
Not in Victoria while either of you is married to someone else. The Relationships Act requires that neither person is married. You must prove the twelve months with evidence, or show compelling and compassionate circumstances.
What if my partner still lives with his wife as well as with me?
Then the partner visa is not open. Exclusivity fails for both definitions. A separation claimed on paper while the marriage continues is a false statement, and public interest criterion 4020 carries a three year bar. Consider a visa based on your own skills instead.
How much does the partner visa cost in 2026-27?
The main applicant charge is $11,710 from 1 July 2026. A review of a refusal at the Administrative Review Tribunal costs $3,727. Our fixed fees are on the fees and process page.
Cabsari (Migration) [2021] AATA 1432 was read in full on 12 October 2026 on AustLII; paragraph numbers refer to that decision, which is a single Member decision and not binding. Section 88D of the Marriage Act 1961 and sections 5CB and 5F of the Migration Act 1958 were read on the Federal Register of Legislation the same day. Charges verified against Home Affairs visa pricing as at 1 July 2026.
General information as at 12 October 2026. Not legal advice. Whether an earlier marriage has ended in substance is a question of evidence in each case, so obtain advice before lodging or answering the Department.