The New Visa Options for Same Sex Partnerships

On the 15th of November 2017, it was revealed that over 60% of the Australian population had voted to legalise same sex marriage. On January 9th 2018, the changes to Australia’s Marriage Act came into effect and as of that date, same sex marriages are recognised under Australian law and same sex couples have the right to get married. For same sex partnerships where at least one is an Australian citizen, permanent resident, an eligible New Zealand citizen or the holder of a temporary visa, this change means that there are now a number of new partner visa options available. In this blog, we examine the legislative changes to the Australian Marriage Act and discuss the new visa options available to same sex couples.

The same sex marriage bill

The Marriage Act 1961 (Cth) has been amended to change the definition of marriage from ‘union of a man and a woman to the exclusion of all others’ to ‘a union of two people to the exclusion of all others’. The introduction of non-gendered language means that the Act now applies equally to all marriages. This includes same sex marriages that have been or will be solemnized overseas. This redefinition of marriage constitutes the major change, but there were a few other amendments that were included in the bill which are pertinent to same sex couples who are planning to marry including:

• The definition of ‘authorised celebrant’ has been revised to include new categories of religious marriage celebrants and certain Australian Defence Force Offices
• Ministers of religion have the right to refuse to marry a same sex couple if same sex marriage is contrary to their religious beliefs or those of their church
• Churches and religious organisations have the right to refuse the use of their facilities for the purpose of a same sex marriage if the wedding does not conform with their religious views of marriage
• New civil celebrants (who are registered after the bill passed) will not be able to refuse to marry same-sex couples
• Civil celebrants who were registered before the bill passed have the right to refuse to marry a same sex-couple

New visa options for same sex couples who have been married overseas

If you have already married your partner in another foreign country where same sex marriage is legally recognised, then you are able to apply for the Subclass 820 onshore Temporary Partner visa and the Subclass 309 offshore Temporary Partner visa as spouses rather than de facto partners.

 

Whilst this might seem like a small change, it can make things a lot easier in terms of proving the legitimacy of your relationship. Couples who apply for a partner visa on the basis of a de facto relationship either have to prove that they have lived together for a period of 12 months or register their relationship with a state or territory government. Unfortunately, registered relationships are only recognsised in NSW, QLD, VIC, TAS and the ACT.

 

However, now that same sex couples have the option to apply for partner visas as spouses, they are able to bypass both the state registration requirement and the 12 month cohabitation requirement.

 

New visa options for same sex couples wishing to marry

 

Same sex couples wishing to get married in Australia now have the opportunity to do so without having to live together in a de facto partnership first. The Subclass 300 Prospective Marriage visa allows the fiancé of an Australian citizen, permanent resident or New Zealand citizen to travel to Australia to be with their partner. This visa lasts for a period of nine months during which time the visa holder can travel to Australia with full working rights and make arrangements to marry their fiancé. This visa is a direct pathways to the Subclass 820 onshore Provisional visa.

 

This option is ideal for same sex couples who have been unable to meet the living requirements necessary to prove a de facto relationship due to logistic, immigration or cultural reasons.

Adding your partner as a secondary applicant to your visa  

 

Adding your partner as a secondary applicant to your visa is also simplified now that same sex marriage is recognised in Australia. Previously, same sex partners could only be included as a secondary applicant for a permanent visa or certain temporary visas (provisional skilled, business migration and student visas) if you could provide evidence of a 12 month de facto relationship, or have registered your relationship. As we discussed earlier, the only way to do this in SA, WA and the NT, where there is no Relationships Register was to prove you have lived together for 12 months.

 

It is now possible to include a spouse in a same sex relationship as a secondary applicant to your visa application.

 

Although the change in laws has opened up new visa pathways to same sex couples, we still recommend working with an immigration agent to give yourself the best possible chance of being granted a visa with a professionally prepared application. AHWC Immigration Law specialise in all Australian partner visa types and are here to help you find the right partner visa pathway for your circumstances. Book a consultation with us to explore your visa options.