Is our marriage valid for visa purposes?
Recognition of marriages for Australian partner visas
One of the most common questions for those who are applying for Australian Partner Visas is whether their marriage is recognised by the Australian Government for visa purpose.
The answer to this is not simple. As each country has their own law and cultures, the marriage can be taken place in different ways. In this article, we will explain various types of marriage and its validity under the eyes of Australian Migration Law.
Generally, Australian Migration Law mirrors the Australian Marriage Act 1961 in determining the ‘validity’ (recognition) or not of marriages, whether solemnized (that is, the ceremony performed) in or outside Australia.
The Australian Department of Home Affairs has defined the following types of marriage for partner visa purpose:
Real Consent is the most important factor that the Department will look at when assessing a partner visa application. No matter what types of marriage you are getting, you and your partner must have real consent towards that marriage, that is, both parties enter the relationship without any forces.
The consent is not considered real consent if:
- it was obtained by duress or fraud
- that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed or
- that party is mentally incapable of understanding the nature and effect of the marriage ceremony.
Marriages solemnized under the Marriage Act
All marriages solemnized under the Marriage Act (which are, of course, recognised under migration law, provided real consent was given) are evidenced by a marriage certificate stating the marriage was solemnized under that Act. (For visa purposes, the original certificate should be sighted, or a certified true copy of the marriage certificate should be provided as evidence that the marriage was solemnized under the Marriage Act.)
Most marriages solemnized in Australia are solemnized under the Marriage Act, unless performed under the laws of a foreign government by a consular official of that government.
Whether or not a foreign marriage is recognised under migration law depends first on whether it is recognised (as valid) in the country in which it was solemnized. A marriage not recognised in the country in which it was solemnized will not be recognised under the Marriage Act nor, it follows, migration law.
For instance, if a same sex marriage was solemnized in a country where same-sex marriage is not recognised by that country’s law, that marriage will not be valid in Australia.
In many cultures, it is common that families arrange marriage for their children. Even if you are arranged to get married with someone when you were at young age, you still need to meet that person in real life since you turn 18 as a requirement of Prospective Marriage Visa – SC 300, and you must know each other personally.
Even though Arranged Marriage is accepted in your country, both parties must give real consent to the marriage. If the Department of Home Affairs believes that you are getting married under families’ duress or cultural pressure, your partner visa application might not be successful.
Proxy Marriage refers to a legal type of marriage where an authorised person signs the marriage documents on behalf of the bridge or the groom. If the country where the proxy marriage was solemnized recognises it, then this marriage is accepted in Australia.
Australian law requires that consent be given by both parties in person. In some countries, however, marriage by proxy is permitted.
In such instances officers should satisfy themselves that:
- the law of the country where the marriage was solemnized (that is, where the marriage celebrant authorised the marriage) permits consent to be given by proxy, and
- the marriage was solemnized in accordance with that law, and
- both parties gave real consent to the marriage.
Read more about the Proxy Marriage and Online Marriage here
Polygamous marriages are situation in which persons may have two or more married relationships concurrently. Although this is accepted and valid in some country, this type of marriage is not recognised in Australia.
One of the requirements of the Australian Partner Visa is that both parties must commit to a share life to the exclusion of all others. Therefore, polygamous marriages fail to meet this requirement and is not valid for a partner visa.
The marriageable age in Australia is 18 years of age. The Marriage Act does, however, recognise certain foreign marriages where one or both of the parties are under 18 years old.
In such instances, the marriage is recognised if both parties were at least 16 years of age at the time of marriage and:
- the marriage was valid in the country in which it was solemnized and
- neither party to the marriage, for the purposes of the Marriage Act, was domiciled in Australia at the time of the marriage.
Marriages between persons within a prohibited degree of relationship
In Australia, marriage between parties who are within a certain degree of relationship to each other are void under Australian law (the Marriage Act). These relationships are between:
- a person and an ancestor or descendent of the person (that is, parent and child or grandparent and grandchild) or
- siblings (whether full blood or half-blood).
These prohibited relationship provisions apply equally to natural and adoptive relationships.
However, marriages between cousins or between nephews and aunts or between nieces and uncles are not prohibited under the Marriage Act and Migration Law.
Same Sex Marriage
Same Sex Marriage has been recognised since December 2017. Therefore, same sex marriage or de facto can be used to meet the requirement of relationship of the Partner Visa.
A transsexual is a person who has undergone what is generally called sex realignment, sex reassignment or gender reassignment surgery.
For visa purposes relating to the recognition of married relationships, the sex of a person in terms of marriages solemnized in Australia is to be taken as their sex at the time of marriage rather than their biological (chromosomal) sex. This means the following.
In relation to post-operative transsexuals:
- a marriage between a male and a post-operative male-to-female transsexual or between a female and a post-operative female-to-male transsexual is capable of being recognised as a marriage for visa purposes
- a “marriage” between a male and a post-operative female-to-male transsexual or between a female and a post-operative male-to-female transsexual is not capable of being recognised as a marriage for visa purposes, even if it is legally recognised in the country in which it is performed.
In relation to pre-operative transsexuals:
- a “marriage” between a male and a pre-operative male-to-female transsexual or between a female and a pre-operative female-to-male transsexual is not capable of being recognised as a marriage for visa purposes.
- a marriage between a male and a pre-operative female-to-male transsexual or between a female and a pre-operative male-to-female transsexual is capable of being recognised as a marriage for visa purposes.
An intersex is neither male nor female, and therefore cannot enter into a marriage recognised for the purposes of the Marriage Act.
However, if the parties meet the de facto relationship requirement, they can still apply for an Australia Partner Visa as sex is irrelevant to de facto relationship.
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