Same Sex Marriage and Migration Law

What the legalisation of same-sex marriage means for couples applying for various visas

Australia has become the 26th country to legalize same-sex marriage after the law was voted on in the House of Representation, passing both houses of Parliament as of Thursday 7 December 2017.

The Marriage Act has explicitly forbidden same-sex unions, and this has impacted the rights of same-sex couples to be eligible to access certain visas in the Australian Immigration context, all of which is now set to change.

Limitations to be only recognised as in a de facto relationship

Currently, same-sex couples have been able to access certain visas on the basis of their de facto relationship. For migration law purposes, a de facto relationship has been recognised as occurring after 12 months of cohabitation. However, specific laws regarding de facto couples differ between the various States and Territories. In certain State and Territories there is an option to register a de facto relationship, and for migration reasons this has proved less burdensome then the 12 month cohabitation requirement. However, this is only available in Victoria, Queensland, and New South Wales.

The lack of legal recognition for same-sex couples has resulted in significant disadvantage, particularly in the context of couples that are unable to live together in the same country. It then restricts their ability to apply for various visas that are available to heterosexual couples in similar situations.

Prospective marriage (subclass 300) visa

Consequently, the legalisation of same-sex marriage will enable same-sex couples to apply for the subclass 300 Prospective Marriage visa (also known as the Fiancé’ visa). This visa is granted on the condition that the couple intend on entering into a legally recognised marriage in Australia within 9 months from the date of the visa grant. This is an offshore visa, meaning the applicant must be offshore at time of application and at time of visa decision. It provides couples with a partner visa option in circumstances where they have not been cohabiting for more than 12 months and the overseas partner is unable to enter Australia for whatever reason.

Onshore (subclasses 820 and 801) and Offshore (subclasses 309 and 100) Partner Visas

While the partner visa subclass 820 and 309 have been available to same-sex couples, they have also been restricted to applying based on their de facto relationship only, again requiring the couple to meet the 12-month cohabitation criteria. Except for registering the relationship when applicable.

However, the legalization of same-sex marriage will enable a couple to also apply based on their spousal relationship, if married. For some couples, this will be fundamental to the success of their partner visa application.

General implication for same-sex couples applying for various visa applications

When evaluating the implications of the legalization of same sex marriage, it necessary to highlight that same-sex couples applying through other visa avenues have also experienced restrictions and inequality.

For a large proportion of visas, when an individual is applying for a particular visa subclass they are permitted to include their de facto partner or spouse as a secondary applicant. However, for this to occur, it is also a requirement that the couple satisfy the de facto criteria or the spousal criteria. Therefore, if same-sex couples were unable to satisfy the de facto criteria through evidencing their 12 months cohabitation, or evidence of the registration of their relationship (if applicable) the secondary applicant would not be granted a visa to accompany their partner to Australia. It is important to note that evidence of the ‘genuineness’ of the relationship is also a aspect that needs to be satisfied.

Thus, we strongly welcome the legalization of same-sex marriage and its implications for all our current and future clients wishing to explore their visa options.