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How marriage equality affects Immigration matters

By 26 September, 2017November 18th, 2021No Comments3 min read

Households across Australia should now be receiving their voting papers as to whether a bill on marriage equality should be introduced into parliament. Despite its non-binding outcome, a positive vote could have wide ranging implications on same sex couples including in the immigration space.

Hannan Tew remains committed to assisting people seek immigration assistance irrespective of their background or circumstances. Our firm’s values are intrinsically aligned with marriage equality.

How does this affect same-sex couples? 

Under the Migration Act, visa applicants looking to include their partners on visa applications, or sponsor their partner for a visa, are required to either demonstrate that they are either in a spousal relationship, or in a de facto relationship.

The lack of marriage equality means that same sex couples will always have to demonstrate that they are in a de facto relationship, if for example:

  • both of them are foreign nationals and looking to be included on the same visa to Australia; or
  • one of them is an Australian citizen/permanent resident and looking to sponsor their partner.

Historical Background

The Same-sex Relationship (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 amended various Commonwealth legislation, including the Migration Act, in order to give same-sex de facto relationships and registered relationships the same recognition already received by opposite sex de-facto relationships.

Specifically, with respect of Migration, it inserted a definition of ‘de facto partner’ that applies equally to same and opposite-sex de facto couples. This of course, still did not give same sex couples equal recognition with respect of marriage.

Why this matters?

As same-sex marriages are not recognised under the Marriage Act, it follows that these marriages are similarly not recognised under the Migration Act.  This means that even same-sex couples who were validly married overseas are unable to demonstrate a spousal relationship, and must be assessed under and evidence that they satisfy the criteria for a de facto relationship.

Although individuals who are not married are still able to obtain visas through demonstrating de facto relationships, certain visas impose a temporal requirement on the de facto relationships.  For example, most permanent visas, and specifically the Partner visa, require the couple to demonstrate that they have been in a de facto relationship for at least 12 months.  Married couples and those who have registered their relationship are exempt from this duration requirement.

For certain visas, demonstrating marriage is sometimes as simple as providing a copy of the marriage certificate. Demonstrating a de facto relationship is much more onerous requirement requiring the couple to evidence things such as co-habitation, joint finances, joint ownership of assets/liabilities etc.

More information?

Feel free to contact us by email at [email protected] or phone (03) 9016 0484 or (02) 8005 1484 for information about how we can help you.

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