The Migration Act 1958 (Cth) allows Australian citizens to bring eligible family members to live in Australia through the family migration stream. Eligible applicants include spouses, a fiancé, de facto partners, children, parents and sometimes other relatives. Previously, same-sex partners were generally required to apply under an interdependency visa which had stricter criteria than other partner and spousal visas.

Australia’s new marriage laws provide that the right for couples to marry is no longer restricted by sex or gender. Same-sex marriages that have been solemnised and are valid in a foreign jurisdiction are now recognised irrespective of when the marriage took place. This means that same-sex couples who were married overseas may be automatically considered legally married in Australia.

Consequently, the category of visa classes for same-sex couples has broadened.

Applicants in a (newly) recognised same-sex marriage may now apply for a visa as a partner’s spouse in a same-sex marriage, rather than as a ‘de facto partner’. These changes apply to subclass visas 100, 309, 801 and 820 and other visas that allow the inclusion of a spouse in an application.

Applicants who are in a same-sex relationship and wish to marry, may also utilise the prospective marriage visa (subclass 300).

Bringing my partner to Australia

The two types of partner visas are:

Prospective marriage visas for those intending to marry – this allows entry into Australia by the sponsored fiancé. If granted, the visa is valid for nine months during which time the marriage must take place. A prospective marriage visa may only be applied for and granted outside of Australia.

Partner visas for those already married or in a de facto relationship. A successful applicant will initially be granted a temporary visa and after a period of two years a further assessment is made. Provided there is a long-standing relationship (and other criteria is met) the grant of a permanent visa will usually follow.

Process and eligibility

The process involves applying for both visa types (temporary and permanent) in one application and at the same time. All applicants (whether applying as a de facto or spouse) must be sponsored (see below) and meet health and character requirements.

De facto partner applicants must not be related by family and must (both) be at least 18 years at the time the application is made. The couple must be able to show that they have a mutual commitment to a shared life to the exclusion of others, and that they have a genuine and continuing relationship.

The relationship must be shown to have existed for at least 12 months immediately prior to the application being lodged. The partners must either be living together or show that any separation is temporary.

Examples of evidence to support the application include bank statements showing joint finances, individual declarations and statements from friends and family that evidence the relationship in a social context.

Spouse partners must be legally married (now more feasible under the Australian marriage reforms) and show that they have a mutual commitment to a shared life as husband and wife to the exclusion of others, and a genuine and continuing relationship. The couple must be living together or if living apart, separation must only be temporary.

Sponsorship requirements

There is no automatic entitlement for Australian citizens to bring their partner into Australia – sponsorship is fundamental to the family migration stream. A sponsor must satisfy eligibility requirements according to the visa type and provide certain undertakings.

A proposed sponsor who has been convicted of a registrable offence will not be approved if the visa application includes a child under 18 years. Police checks must accompany applications for sponsorship if one or more of the applicants is under 18 years.

A proposed sponsor of a fiancé or partner is also limited to the number of visa applicants he or she may sponsor. Unless compelling circumstances exist, a person may not sponsor more than two partner or prospective marriage visa applicants for a minimum of five years between each sponsorship.

The sponsor must ensure that the visa holder is supported during the settlement phase to minimise, wherever possible, any burden on the Australian community. The sponsor should also ensure that the visa holder is equipped with all information and advice necessary to assist in his or her settlement in Australia.

A sponsor must provide adequate accommodation and financial assistance to meet the visa holder’s reasonable living needs for a period of two years after the visa is granted.

Conclusion

Changes to Australian marriage laws have opened new pathways for visa applicants in same-sex relationships. The requirements however for lodging partner visas can be complex. Migration law changes frequently and it is important to obtain sound advice from a legal professional before proceeding with any visa application.

If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9212 2422 or email info@tklegal.com.