A new section ‘Immigration status’ has been added to the Divorce section of the By Lawyers reference manual 101 Family Law Answers.
This new section provides guidance on establishing whether a party is ‘habitually resident’ in Australia when both the applicant and the respondent hold a temporary visa.
Section 39(3) of the Family Law Act 1975 provides that for the court to have jurisdiction to grant a divorce order, either the applicant or the respondent must be:
- an Australian citizen;
- a person domiciled in Australia; or
- ordinarily resident in Australia for one year immediately preceding the filing date.
Section 4(1) of the Family Law Act 1975 provides that ‘ordinarily resident’ includes ‘habitually resident’.
If both the applicant and the respondent hold a temporary visa, and either has been living in Australia for 12 months, the next step is to establish whether they are habitually resident. The applicant or respondent will need to establish they have settled, or intend to settle, in Australia by providing evidence of accommodation, employment and other community connections. The type of visa currently held and an intention to apply for permanent residency will also be relevant.
The claim to habitual residence is best addressed in an affidavit in support of the divorce application. This will avoid the application being adjourned or listed for submissions on the residency issue.
101 Family Law Answers provides practitioners with valuable information on the more unusual and detailed aspects of family law and includes many helpful links to cases and legislation. It can be found in the Reference Materials folder on all of the matter plans in the Family Law publication.
For more information on temporary visas, see the By Lawyers Immigration publication.