Australia’s Marriage Act  – same sex marriage and it’s impact on visas applications

Following Australia’s recent parliamentary approval of same sex marriage, amendments to the Marriage Act are now underway. With an overwhelming majority of MPs voting to change the Marriage Act, eight days after a similarly decisive result in the Senate, this result brings an end to more than a decade of robust and often controversial debate on the issue. Here we explore the likely migration consequences for same-sex couples when Australia’s Marriage Act is duly updated.
Partner Visas – Legal Marriage

Under existing Australian law, same-sex marriages are not currently recognised and as such it has not been possible to apply for a partner visa on the basis of same sex marriage. With recent parliamentary approval however, it reads that same sex marriages should be eligible to form the basis of a partner visa application.

Partner Visas – 12 Month De Facto Relationships and Relationship Registration

Since we are as yet unsure when amendments to the Marriage Act will come into force, it maybe useful for same-sex couples to consider the 12 Month De Facto Relationships and Relationship Registration. This registration allows same sex couples to apply for partner visas on the basis of a de facto relationship. The requirements here are for couples to provide evidence that they have cohabited for a period of 12 months, in order 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 the purposes of immigration, registered relationships are only recognised in Victoria, Tasmania, Queensland, NSW, and the ACT.

Prospective Marriage Visa Applicants

The Prospective Marriage Subclass 300 or Fiancé(e) Visa can be a good option for many applicants. This relates to situations where a couple has an intention to get married in Australia, but are not cohabiting. This option can be beneficial in circumstances where it is not possible for a couple to live together due to immigration or cultural issues. While many overseas countries do not recognise same-sex couples for visa purposes, with recent changes to Australia’s Marriage Act, same sex couples should now be eligible to make an application for the Prospective Marriage Subclass 300 or Fiancé(e) Visa.

An additional visa subclass should also now be open to same sex couples; the Subclass 309 Offshore Partner Visa. This visa always applicants to apply on the basis of a marriage which is planned to take place in the future. Since amendments to the Marriage Act are now underway, this pathway should also be open to same-sex couples.

Including Family Members as Dependents

Given that same-sex marriages are now recognised, this will make it easier to include partners in visa applications. Previously, you could only include a same-sex partner if you could establish that you were in a de facto relationship. For permanent visas, you would generally have needed to show that you had lived together for 12 months to establish a de facto relationship. This also applied to certain temporary visas such as student visas, provisional skilled and business migration visas. However, with amendments to the Marriage Act underway, it should be possible to include family members as dependents.

Conclusion

Whilst we do not yet know how or when the changes to the Marriage Act will be implemented, one thing is clear, marriage equality in Australia is here. To discuss how changes to the Marriage Act may affect your visa application, contact Michael Leonard, CEO and Founder of Ark Migration on +44 7904 666 124 or email michael@arkmigration.com