Same Sex Marriages & the Australian Partner Visa: Here’s What You Should Know

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Under the partner visa program, all same sex couples were already eligible to apply as de facto partners but now also have access to the partner visa system as a married couple. As Australia have legalised same-sex marriages, now you can bring your overseas partner as your spouse once you are legally married in Australia or overseas.

Which category of Partner visa?

1. Married Couples

Under this requirement, you both have to be legally married in a valid marriage under the Australian law. The definition of marriage has changed in Australia to include the ‘union of two people’ rather than between a man and woman. This is the main change that is applicable after the 15th of November 2017 survey for same-sex marriage and the passing of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017  late last year.

Once you get married, or if you are married overseas to your same-sex, you will be eligible to sponsor your overseas partner as your spouse under a partner visa application. A mere marriage certificate will not be sufficient to prove your relationship with your partner as you need to prove that you are both in a genuine ongoing marital relationship to the exclusion of everyone else and not living separately on a permanent basis. Your will also have to prove the following aspects:

  1. Financially you are committed to each other and share your financial obligations and assets if you elect to;
  2. The nature of the household and the domestic arrangement of how you both take care of your common home (if you are living together);
  3. Social context of the relationship and the recognition by other Australians of your relationship; and
  4. How committed you are to each other.

There is no rule of how long you both have to been living together before you apply for a partner visa as a married couple. You will qualify even if you have not lived together prior to the marriage as long as you can meet the above requirements and can prove your genuine relationship with your partner. You will need to give detailed encounter on how you met and how the romantic relationship developed.

2. Non-married couples (De facto Relationships)

Your overseas partner can apply under the de facto stream for a Partner visa which does not require you to be officially married. This has been an option for same-sex couples even before the legalisation of same-sex marriage in Australia. A de facto relationship requires you to be living together and be in a genuine, ongoing relationship for at least 12 months before applying for the visa, exceptions apply. Alternatively, you can prove your de facto relationship if your relationship is registered with an Australian state government. The four aspects of the relationship explained above will still need to be proven.

Not every Australian can sponsor their same-sex partner. There are rules and limitations on sponsorships which apply to all Australian sponsors. If you have sponsored or have been sponsored on a Partner visa previously (either in same-sex context or in another context), make sure to seek legal advice before lodging another Partner visa application.

What if I am engaged to my same-sex partner from overseas?

If you do not fall either under the married couple or de facto partner rules above, and you are engaged to your same-sex partner who is overseas, you can bring them on a prospective marriage visa which will allow them to travel to Australia to finalise the marriage within 9 months of their arrival.

This visa is not a permanent visa and after the marriage your partner can then apply for a partner visa based on the above conditions. If the relationship breaks down during that period, the visa might be cancelled and your partner might have to depart Australia.

Is a partner visa a permanent visa?

When your partner apply for a partner visa application, they will be applying for a two-stage process visa, the first is temporary then the second is a permanent visa. To qualify for the permanent visa at the start the relationship has to be a long term relationship (or a common child is involved plus at least a two year relationship). Alternatively, your partner/spouse will be eligible to apply for the permanent stage two years from the date of the first application.

Does my partner have to be in Australia to apply for this visa?

A partner visa can be applied for when your partner is in Australia (Subclass 820/801) or can be applied for from overseas (Subclass 309/100). If your partner applies within Australia then he/she has to be in Australia at the time the visa is granted and vice versa. If your partner wish to apply for this visa in Australia, we recommend seeking legal advice before applying as there can be prevented from doing so legally or they may be facing other hurdles based on their immigration history.

How much does a partner visa cost?

The current cost for a partner visa application is AUD 7000. This will cover the Australian government cost for the two stages. Other costs will include police clearance, medical examinations, legal costs, travel fees along with other expenses.

How long does the visa application take to be processed?

The current processing time is 20 to 25 months for an onshore application and 11 to 16 months if the application is lodged when your partner is overseas.

If the application is lodged in Australia, your partner will most likely be eligible for a bridging visa allowing them to stay in the country until their visa is being processed. They might also be eligible for Medicare as soon as they lodge their application in Australia.

What if the visa is refused?

A refusal decision is not final. In fact almost half of the refusal decisions for partner visas at the Department of Home Affairs are overturned on appeal. We strongly suggest that you seek legal advice and engage professionals to assist you in lodging the visa application to help you to collate the right documents. If the visa is then refused, it can be reviewed at the Administrative Appeals Tribunal (AAT) who will look at the application with fresh eyes. If your visa was refused, contact us to discuss. There will be very strict time limits to review the application so act immediately.

Useful tips

  • Seek legal advice before lodging a partner visa application. Make sure to contact specialists in this area. Our office has successfully represented same-sex couples in partner visa applications and we can guide you through the process.
  • You may be able to prove you are in a de facto relationship with your partner even if you did not live together for 12 months.
  • You will have to disclose correct information to the Department otherwise the visa may be refused or cancelled later on.
  • As an Australian citizen or permanent resident, you can only sponsor two overseas partner (regardless of their gender) in your lifetime.

About the authors

This article was written by Marial Daniel, a senior associate and a registered migration agent (MARN: 1575322) of Teleo Immigration Specialists.

Teleo has successfully represented thousands of applicants over the past 10 years, including complex matters, visa cancellations and review applications.

The director of Teleo Immigration Specialists, Dr Etienne Hugo (MARN: 0004435) has over 17 years of Australian immigration experience and is one of only 35 accredited specialists immigration lawyers in New South Wales. Etienne is admitted as a lawyer in NSW and also the High Court of Australia. He was awarded both his BLC and LLB degrees with distinction and subsequently completed a LLD (Doctor of Law degree) from the University of Pretoria. He obtained his Immigration Law certification from UTS with distinction. Dr Hugo is a Fellow of the Migration Institute of Australia and regularly presents papers on Immigration Law. He has also taught at ANU in the graduate diploma for Immigration since 2006.

If you wish to seek advice or apply for an Australian visa, please contact us on reception@teleo.com.au .

DISCLAIMER: Immigration law is complex and is subject to constant regulatory and policy change by the Department of Home Affairs.  The information provided here may therefore be out-dated and no longer accurate.  The information provided above is a general guide only – it is not tailored for your specific circumstances or immigration purposes and you must under no circumstances rely on this information for immigration planning or the lodgement of an application with the Australian government or related bodies.  In order to ensure your eligibility is accurately assessed and to allow for tactical decision making that would best suit your desired immigration outcome, it is essential that you consult with a capable immigration advisor registered with the relevant Law Society and/or OMARA.  We direct new client enquiries to schedule an initial consultation with our office – email: reception@teleo.com.au. During an initial consultation we have the opportunity to obtain a complete set of facts that will allow us to explore all the available options.  Another reason we engage clients within the context of an initial consultation is to protect our firm from potential professional liability which may flow from providing a brief, unconsidered opinion.  As a paying client you/ us have the benefit of professional indemnity insurance. Liability limited by a scheme approved under the Professional Standards Legislation.

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