Australian Same Sex Partner Visa
For years same sex marriage has been discussed in the political arena around the world. On 9 December 2017, laws legalising same-sex marriage in Australia, and recognising same-sex marriages having previously taken place overseas, came into effect.
The Immigration Department has updated its application process to allow same-sex partners to apply for Partner visas (subclasses 100, 309, 801 and 820) and a Prospective Marriage visa (subclass 300).
So which visa is right for you?
Previously same-sex partners had to resort to applying for a permanent interdependency visa and fulfil seemingly stricter criteria to prove the existence of an ‘interdependent relationship’. It has taken a long time and they need to prove they are in a relationship to much a higher level than a heterosexual couple would have to prove. Also, that proof can sometimes to be difficult to obtain if the foreign partner is from a country where homosexuality is, for instance, criminalised or socially unaccepted.
Now that same-sex partners can marry in Australia, or have their oversea marriages legally recognised will be able to have their marriage count towards their visa application. Therefore, a lot of those difficulties will be removed. Under the changes, a person in a same-sex marriage you can apply for a visa as their partner’s ‘spouse’ rather than as their ‘de facto partner’.
In fact, Same Sex or Heterosexual De Facto couple would normally require to show that they have lived together for at least 6 months as part of an overall De Facto relationship of at least 12 months 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 immigration purposes, registered relationships are only recognised in NSW, Queensland, Victoria, the ACT and Tasmania.
Now as same-sex marriage is recognised under Australian law, it would be possible for such couples to apply for Partner Visa instead of relying on the relationship register or being restricted by the timeframe.
However, please note Same-Sex or Heterosexual marriage or the bases of a spouse relationship does not remove the Genuine Relationship Requirements and other General Requirements requested to be proved under the Partner Visa Program.
Prospective Marriage (Fiance) Visa Applicants
The Prospective Marriage Subclass 300 or Fiance visa can be a good option for many applicants. This subclass is for situations where a couple has an intention to get married, but are not currently living together.
This is particularly beneficial if it is not possible for a couple to live together due to immigration or cultural issues. Many overseas countries do not recognise same-sex couples for visa purposes which makes it difficult for couples to live together overseas or to marry.
As same-sex marriages are recognised in Australia, same-sex couples can now apply for a fiance visa. It is also possible to apply for an offshore partner visa on the basis of an intending to marry, which is planned to take place in the future. In this case, you can apply directly for a Subclass 309 offshore partner visa, at least where a Same Sex marriage is recognised in a foreign country.
Including Family Members as Dependents
Now you can include a same-sex partner/ spouse and other dependent family members to apply for permanent visas in Australia if you can establish Same Sex relationship with a genuine intention. This also applies to certain temporary visas such as student visas, provisional skilled and business migration visas.
Visas can often be a stressful process, to explore your options, do not hesitate to contact our Agents at Modern Migration Australia.