Australia Says Yes - Migration Consequences of the Marriage Equality Survey

By Mark Webster Wednesday, 15 November 2017

The results of Australia's Australian Marriage Law Postal Survey were published today.

With over 60% of people supporting changes to the law allowing same-sex marriage, this may well have consequences for people applying for Australian visas.

This article goes through the likely migration consequences for same-sex couples if Australia's Marriage Act is updated.

Partner Visas - Legal Marriage

Because same-sex marriages are not currently recognised under Australian law, it is not possible to apply for a partner visa on the basis of such a marriage. This is the case even if same-sex marriages are recognised under the law of the country where the marriage took place.

If same-sex marriages become permissible under Australian law, it would be possible for such a marriage to form the basis of a partner visa application. It is likely that overseas marriages would also be recognised under Australian Immigration Law, providing they are recognised in the country where they take place.

Partner Visas - 12 Month De Facto Relationships and Relationship Registration

Same-sex couples are currently only able to apply for partner visas on the basis of a de facto relationship.

This would normally require couples to show that they have lived together for a period of 12 months to qualify for a partner visa.

One of the main exemptions to the 12-month cohabitation requirement for de facto partner visas is where your relationship has been registered by an Australian State or Territory Government. In this case, you can qualify for a partner visa if you can show that you are living together, but don't need to show that you have lived together for a 12-month period.

However, not all states and territories support registration of relationships, or require both parties to be resident in the state or territory. For immigration purposes, registered relationships are only recognised in NSW, Queensland, Victoria, the ACT and Tasmania.

If same-sex marriages are recognised under Australian law, it would be possible for such couples to get married instead of relying on the relationship register, regardless of where they live.

Prospective Marriage (Fiance) Visa Applicants

The Prospective Marriage Subclass 300 or Fiance visa can be a good option for many applicants. This subclass is for situations where a couple has an intention to get married in Australia, but are not currently living together.

This is particularly beneficial if it is not possible for a couple to live together due to immigration or cultural issues. Many overseas countries do not recognise same-sex couples for visa purposes which makes it difficult for couples to live together overseas. There are also situations where social taboos makes this difficult.

Because same-sex marriages are not yet recognised under Australian law, same-sex couples cannot apply for fiance visas. This should change if the Marriage Act is amended as a result of the survey, which will open a new application pathway.

It is also possible to apply for an offshore partner visa on the basis of a marriage which is planned to take place in the future. In this case, you can either apply directly for a Subclass 309 offshore parent visa, or convert a prospective marriage subclass 300 visa to a Subclass 309 visa. If the Marriage Act is amended, this pathway should be possible for same-sex couples also.

Including Family Members as Dependents

If same-sex marriages are recognised, this will make is easier to include partners in visa applications. Currently, you can only include a same-sex partner if you can establish that you are in a de facto relationship. For permanent visas, you would generally need to show that you have lived together for 12 months to establish a de facto relationship. This also applies to certain temporary visas such as student visas, provisional skilled and business migration visas.

Conclusion

Whilst we do not yet know how or when the changes to the Marriage Act will be implemented, the result of the Marriage Survey is positive for same-sex couples.

If you would like advice on your migration options, please book a consultation with one of our advisors.

References

ABS: Australian Marriage Law Postal Survey Results