Same-Sex Relationships and Partner Visa

Now that same-sex marriage is legally recognised in Australia; it is possible to apply for a partner visa based on marital status. We will explore this further below.

Prior to the amendment to the Marriage Act 1961, same-sex marriage was not recognised in Australia. Even if a same-sex couple is married legally overseas, the marriage is not considered valid in Australia. However, a same-sex couple could apply for a partner visa as a de facto partner if the applicant meets all the relevant requirements.

However, on 9 December 2017, the Marriage Act 1961 was updated to allow for marriage equality. The Marriage Act 1961 defines marriage as a union of 2 people to the exclusion of all others, voluntarily entered into for life. Previously the definition had read ‘the union of a man and a woman.’

For the purpose of migration, the Migration Act 1968 has also been updated. Section 5F of the Migration Act 1958 now defines a spouse as ‘a person is a spouse of another person whether they are in the same-sex or different sex.’ To show a married relationship, the applicant must show that:

  • The marriage is valid (i.e., marriage is recognised by law), and
  • The applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, and
  • The relationship is genuine and continuing, and
  • The applicant and sponsor must live together or do not live separately and apart on a permanent basis.

For this reason, a same-sex couple can apply for a partner visa based on marital status.

Which partner visa can you apply for?

Depending on your current circumstances and migration goals, a same-sex couple can apply for the following partner visa:

You can read more about the requirements here.

Overseas Marriages

Since the amendment was made to the Marriage Act 1961, the government now also recognises overseas marriages. Therefore, if you are legally married overseas, and you have a marriage certificate, that marriage certificate should be recognised by the Department for visa purposes.

Tips

Whilst getting married to your partner is a strong indication that the relationship is genuine and continuing, you are still required to provide further documents substantiate your partner visa application. Therefore, it is best not to assume that you are guaranteed a visa based on marital status. Alternatively, it would be in your best interests to prepare supporting documents to show that the relationship is genuine and continuing.  Some documents include:

  • Joint lease or joint mortgages
  • Joint loan documents
  • Joint household bills
  • Photos of social event and/or joint gathering
  • Tickets for joint travel
  • Messages and chat history
  • Terms of the wills
  • Mails or emails addressed to both of you

As you can see, there is a myriad of documents to prepare. Therefore, we recommend that you start your preparation early. You can also book a consultation with us to help you navigate through the complexity of a partner visa.

Important update: English Test for Permanent Stage of Partner Visas & Partner visa changes ahead- 2021

Is it legal to get married as a same-sex couple on a Tourist Visa?

  1. There are no visa restrictions regarding getting married. So, it is legal for a same sex couple on a Tourist Visa to get married in Australia.
  2. A couple from overseas does not need to stay in Australia or be in Australia for any period of time before their marriage takes place. There is nothing that requires them to spend a certain amount of time or money in Australia in order to get legally married. It’s completely possible and legal for a couple to fly into Australia in the morning, get married at noon and then fly home the same day, married.

How much notice does it take to get married in Australia?

  1. Any couple intending to get married in Australia is required by the Marriage Act 1961 to give the celebrant at least one month’s written notice prior to the marriage taking place. The one month’s notice is given formally on a form called the Notice of Intended Marriage (NOIM). It needs to be lodged with the celebrant at least one month before the marriage takes place (unless there are very special circumstances).

Do I need to provide evidence of my gender in the Notice of Intended Marriage (NOIM)?

    1. Not at all. In fact, the question of your ‘gender’ on the NOIM is an optional question. You can leave it blank if you wish to. The NOIM doesn’t yet understand or acknowledge that not everyone neatly identifies as ‘female’, ‘male’, or ‘non-binary’.

Is My Overseas Lgbtiq+ Marriage Recognised In Australia?

a.  In Australia,The Marriage Act 1961 recognises existing and future same-sex marriages solemnised overseas under the law of a foreign country.

b.   LGBTIQ+ marriages solemnised in Australia by a diplomatic or consular officer under the law of a foreign country before 9 December 2017 are also recognised.

c.        A couple whose foreign LGBTIQ+ marriage is recognised in Australia cannot marry each other again in Australia, unless there is a doubt as to the validity of the foreign marriage. You can have a commitment ceremony, or a renewal of vows ceremony back here in Australia but whoever conducts that ceremony must make it clear to all who attend it that the ceremony is not a legal marriage ceremony.

What’s The Language Used In The Australian Legal Marriage Vows, For Members Of The Lgbtiq+ Community?

  1. The legal vows that must be said by each party to one another, during their marriage ceremony, in the presence of the celebrant and the two witnesses are as follows: “I call upon the persons here present to witness that I, A.B. , take thee, C.D., to be my lawful wedded wife (husband or spouse or partner in marriage)’; or words to that effect.”
  2. Under subsection 45(2) of The Marriage Act 1961, marrying couples can make a personal choice about the terms to be used in their marriage vows that best reflect their relationship. The following wording substitutions and changes are acceptable given the inclusion of ‘words to that effect’ in subsection 45(2):
    1. . ‘husband’, or ‘wife’ or ‘spouse’ may be changed to ‘partner in marriage’
    2. ‘call upon’ may be changed to ‘ask’
  • ‘persons’ may be changed to ‘people’
  1. ‘thee’ may be changed to ‘you’
  2. ‘persons here present’ may be changed to ‘everyone here’ or ‘everybody here’ or ‘everyone present here’ or ‘everybody present here’, or
  3. the couple may leave out either ‘lawful’ or ‘wedded’, but not both.
  1. It is completely lawful for the following vows to be said by LGBTIQ+ couples, who may find the use of the gendered terms ‘husband’, ‘wife’ and ‘spouse’ offensive, and who wish to have a more contemporary set of vows that better reflects how they live their lives:‘I ask everyone here to witness that I, A.B. , take you, C.D. , to be my lawful partner in marriage”

Which partner visa is available to same sex couples?

    1. If your partner is in Australia and you meet defacto criteria then most likely subclass 820/801 is the most suitable.
    2. If you are residing with your partner overseas, an offshore partner visa subclass 309/100 would be more appropriate.
    3. Prospective Marriage Visa may be appropriate when you and your LGBT partner are not yet married but have marriage plans. The applicant should be outside Australia in order to be eligible for this visa.

Can I apply for Partner visa if I’m still married and I cannot get a divorce?

 

  1. According to section 5F(2)(d)(ii) of the Migration Act 1958, a spousal relationship does not exist if the parties  are ‘permanently separated’ or ‘living separately and apart on a permanent basis’.
  2. This provision suggests that an individual who is currently in a marriage can establish a de facto relationship. By providing evidence that the previous relationship has ended permanently and supporting this by reasons or circumstances on why a divorce has not been obtained
  3. The situation can be complicated, and it requires a professional to assess the situation and advise of the best pathway forward.
  4. The case of Cabsari (Migration) [2021] AATA 1432 (13 May 2021)explores the notion of polyamorous marriages and relationships and whether these can fit within the definition of de-facto relationship and spousal relationship under the Migration Act 1958. (https://visaenvoy.com/polygamous-marriages-partner-visas/)

How long do I have to be in a de facto relationship before I can apply for a visa?

    1. According to reg 2.03A of the Migration Regulations1994 , the couple needs to be in a de facto relationship for at least 12 months immediately before applying for the visa.

 

Are there any exceptions to the 12-month requirement of living together?

    1. This 12-month criterion can be waived in certain circumstances where:
      1. The couple registers their de-facto relationship with the Australian Registry of Births, Deaths and Marriages; or
      2. Compelling and compassionate circumstances exist for the visa grant

 

Can same sex couples register their relationship?

    1. Same sex couples can register their relationship in the following States and Territories of Australia: https://visaenvoy.com/relationship-register-for-partners/
    2. Registration of the relationship provides legal recognition to the couple under state law as well as for immigration purposes. Registration formalises the couple’s de-facto status without the need for marriage and waives the 12 months co-habitation criterion.

What happens if same sex couples are unable to obtain a relationship certificate?

    1. If the applicants are unable to obtain a relationship certificate, they may be able to apply for a de-facto visa if:
      1. there are compelling and/or compassionate circumstances that exist in the applicant and/or sponsor’s visa application, and the
      2. compelling and/or compassionate circumstances are extenuating enough to warrant the visa grant.
    2. ‘Compelling and compassionate circumstances’ is a high threshold to meet, and these may include (but are not limited to) circumstances where:
      1. The applicant has dependent children– If there are children from the relationship, the couple may apply for/be granted the visa.
      2. Couples who were unable to cohabit– If the couple cannot cohabit due to their cultural customs, religious traditions, or laws in the applicant’s country of residence, they can apply for the de-facto visa under compelling/compassionate circumstances.
  • Couple in a same-sex relationship– Applicants in a same-sex de-facto relationship can apply for a de-facto visa under compelling or compassionate circumstances if their relationship is considered illegal or dangerous in their home country.

 

What is the estimated processing times for a Partner Visa application in Australia?

    1. The processing time for a Partner Visa application in Australia can vary depending on a number of factors, including the complexity of your application, the volume of applications being processed by the Department of Home Affairs, and whether or not you have provided all the required information and documentation.
    2. Currently, the Department of Home Affairs provides indicative processing times for Partner Visa applications on their website. The current processing times are as follows:
      Partner (subclass 820) visa: 4 to 37 months
    3. Partner (subclass 100) visa: 6 to 32 months

 

Recent News

35 Years or Under Age Limit for 485 Visa

Core Skills Occupations List (CSOL)

Bridging Visa R

Genuine Student (GS)

Mobility Arrangement for Talented Early-professionals Scheme (MATES)