Partner Visa for Same-Sex Relationships

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. 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:

• Subclass 820/801 – Onshore Partner Visa
• Subclass 309/100 – Offshore Partner Visa
• Subclass 300 – Prospective Marriage 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.

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• Major Partner Visa Changes, Family-Employer-Business Visas Prioritised Within 160,000 Places
• Fiance (prospective spouse) visa
• Partner Visa for Same-Sex Relationships