Polygamous Marriages & Partner Visas

Polyamory and polygamous marriages are not uncommon in the current time and can also form part of tradition, culture, and religious practice in various countries. When individuals are seeking to migrate to Australia and they are involved in a polyamorous relationship, there does remain uncertainty as to how this is assessed when applying for a Partner Visa. To qualify for a Partner Visa, you must be either married to or in a de facto relationship with an Australian Citizen, Permanent Resident or Eligible New Zealand Citizen at the time of your application.

In Australia under section 94 of the Marriage Act 1961[i] bigamy or a polyamorous marriage, defined as marrying another person that is already married, is illegal. However, 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.

De-Facto Relationship

Under section 5CB of the Migration Act 1958[ii], a de-facto relationship is defined as comprising the following factors:

• Mutual commitment to a shared life to the exclusion of all others; and
• Relationship is genuine and continuing; and
• They live together or do not live separately on a permanent basis; and
• Are not related by family

Spouse

Under section 5F of the Migration Act 1958[iii], a spouse in a married relationship is defined as comprising the following factors:

• Married to each other under a marriage that is value for the purposes of the Act; and
• Mutual commitment to a shared life as a married couple to the exclusion of others; and
• Relationship is genuine and continuing; and
• They live together or do not live separately on a permanent basis

The main concern is the reference to both a de-facto relationship and a spousal relationship being ‘to the exclusion of all others’.

[i] Marriage Act 1961 (Cth), s 94

[ii] Migration Act 1958 (Cth), s 5CB

[iii] Migration Act 1958 (Cth), s 5F

Cabsari (Migration) [2021] AATA 1432 (13 May 2021)

In this case, the Sponsor and Visa Applicant were married on 10 July 2008 in Indonesia. The Sponsor remained married to his first wife at the time that he married the Visa Applicant. It is important to note that under Indonesian or Islamic law, polyamorous marriages are recognized.

The Sponsor explained that he remained married to his first wife and lived with her and his children as they did not want to disrupt the children’s life with their divorce. The Visa Applicant attempted to apply for a Partner Visa to come to Australia to live with her husband, the Sponsor. However, the consideration was raised as to whether the Visa Applicant met the relevant criteria given the status of Australian law and the failure to recognize polygamous marriages.

The decision took almost 7 years to be settled. The Tribunal determined that from June 2013, as the Visa Applicant and the Sponsor had claimed, they commenced a mutually exclusive de-facto relationship from all others despite the Sponsor still being married to his first wife. This was considered to satisfy the definition of a de-facto relationship under the Migration Act 1958 at the time of the visa application.[i] On 6 July 2018, the Sponsor and his first wife sought a legal divorce. This allowed the Visa Applicant and the Sponsor to meet the definition of spousal relationship under the Migration Act 1958 at the time of the decision.[ii]

UR Rehman and Minister for Home Affairs (Citizenship) [2019] AATA 2344

Whilst this case does not concern Partner Visas, it is helpful to gain a further understanding of the interaction of polyamorous relationships and migration law. The following analysis is confined to the discussion surrounding polygamous relationships within the case. UR Rehman and Minister for Home Affairs (Citizenship) [2019] AATA 2344 concerns the refusal of Australian citizenship on the basis the Applicant failed to satisfy he was of “good character” by failing to disclose his marriage and child in Pakistan whilst he was also married to a woman in Australia.

The delegate of the Minister stated in the Applicant’s refusal letter that his conduct amounted to bigamy or a polygamous relationship which “does not conform to the values of Australian society and is against Australian law”.[iii]

On review of the decision by the AAT, the Tribunal held that the view of the delegate was incorrect.[iv] There was reference made to section 6 of the Family Law Act 1976 which provides for polygamous marriages to be recognized where the union was certified in another country.[v] The final conclusion on the matter of the polyamorous marriage was that the delegate should not have relied upon this factor as determinative of the Applicant’s character. The Tribunal appeared to be seeking to accept the nature of polygamous relationships and raised the point that there are circumstances where polygamous marriages can and may be recognized in Australia.[vi]

Conclusion

The intersection between polyamorous marriages and migration law is complex. However, the acceptance of such unions appears to be slowly changing for the better. The Cabsari case demonstrates that the definition of ‘spouse’ and ‘de-facto’ are not as strictly construed as in other areas of Australian law. Further, the case of UR Rehman illustrates that the Tribunal has a willingness to recognize foreign marriages or relationships that may not necessarily conform to the legal standard in Australia.

[i] Cabsari (Migration) [2021] AATA 1432 (13 May 2021) at [199]

[ii] Ibid.

[iii] UR Rehman and Minister for Home Affairs (Citizenship) [2019] AATA 2344 at [11]

[iv] UR Rehman and Minister for Home Affairs (Citizenship) [2019] AATA 2344 at [65]

[v] Ibid

[vi] Ibid at [12].