“I don’t know if I’ve been broken up with!” How your immigration lawyer can help.
After your friends and family, the most important person to tell about your breakup is your immigration lawyer. Knowing when your relationship has started and knowing when it has ended can have important implications for your visa. However, as many will know, human relationships are complicated, and it is often difficult to pinpoint exactly when one has begun and when one has ended.
A recent case in family law, may offer some insight into how and when a relationship has broken down.
Facts
The Plaintiff and Defendant, who we will call Mr X and Mrs Y, began a de facto relationship where they had agreed to keep their assets separate but live together. However, Mrs Y was eventually diagnosed with dementia and did not have the capacity to make long-term decisions.
Following her diagnosis, Mr X had Mrs Y execute an enduring power of attorney in favour of him and arranged for the alteration of her will such that he would be granted much more favourable property rights upon her death. Furthermore, after a dispute with Mrs Y’s trustee, Mr. X opposed to selling the house Mrs Y’s house that he lived in even though he had never financially contributed to the property, and he owned several other properties.
Legal Background
A comparison of the factors that migration law and family law consider when determining whether a de facto relationship has broken down can be found below:
Migration Law
The financial aspects of the relationship, including:
any joint ownership of real estate or other major assets; and
any joint liabilities; and
the extent of any pooling of financial resources, especially in relation to major financial commitments; and
whether one person in the relationship owes any legal obligation in respect of the other; and
the basis of any sharing of day-to-day household expenses; and
The nature of the household, including:
any joint responsibility for the care and support of children; and
the living arrangements of the persons; and
any sharing of the responsibility for housework; and
The social aspects of the relationship, including:
whether the persons represent themselves to other people as being married to each other; and
the opinion of the persons' friends and acquaintances about the nature of the relationship; and
any basis on which the persons plan and undertake joint social activities; and
The nature of the persons' commitment to each other, including:
the duration of the relationship; and
the length of time during which the persons have lived together; and
the degree of companionship and emotional support that the persons draw from each other; and
whether the persons see the relationship as a long-term one.
Family Law
the duration of the relationship;
the nature and extent of their common residence;
whether a sexual relationship exists;
the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
the ownership, use and acquisition of their property;
the degree of mutual commitment to a shared life;
whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
the care and support of children;
the reputation and public aspects of the relationship.
Although not worded exactly the same, the essence of what constitutes a de facto relationship for both migration and family law remain roughly the same – that is, there is financial intertwinement, a common residence, their relationship is presented as being romantic to the public and the general commitment the couple have together. Therefore, this case could provide some useful guidance in determining whether a relationship has broken down in relation to your visa.
Decision
The High Court eventually found that Mr X and Mrs Y’s relationship had in fact broken down even though they had lived together and Mr X was adamant that the relationship was still ongoing. The court had made this decision by reference to Mr X’s conduct which included:
They were living in separate bedrooms by the time Mrs Y was diagnosed with dementia and had separate belongings. By the time the matter was before the court, the couple were living separately.
Mr X refused to vacate Mrs Y’s house to allow the sale of the house in her best interests
Mr X only agreeing to contribute to Mrs Y’s care costs if he were reimbursed
What is the immigration take-away?
The test of whether a breakdown of a relationship has occurred is not the subjective intentions of the people involved, but what can be ascertained from their objective intentions. For example, a couple who have expressed a desire to break up but fail to move out, disentangle their finances or tell any of their friends are, for all intents and purposes, still together. Likewise, a failure to verbally discuss a breakup does not mean a relationship is still ongoing when one party has moved out, changed their Facebook status and sold the couple’s cat.
This is reflected in departmental policy which only takes into account the intentions of the couple as one factor.
“Although withdrawal of sponsorship is one indicator that a relationship has ceased, officers are not bound to conclude that a relationship breakdown has occurred on that date. They may decide that a relationship ended on another date having regard to other information, such as when the couple ceased living together, what other steps were taken to notify others of the end of the relationship or separating of financial affairs.”
How can Agape Henry Crux Help You?
If you want to find out more, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
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