Marriage Equality and the Migration Act

Being a Migration Agent who specialises in partner visas, I claim to have one of the best jobs in the world. Day in and day out I help Australians who have fallen in love with someone from another country keep their partner here in Australia or bring their loved one to Australia so they can live their happily ever after. Modern day cupid right?

As a partner visa specialist I know first hand that no two relationships are the same, but regardless of how you fell in love, how you show your love and where your love story started as Australians we should all be afforded the same rights and opportunities when it comes to the person you want to spend the rest of your life with.

The right to marry your beloved with legal recognition is currently restricted to heterosexual couples – a man and woman. Same sex couples are excluded from legal marriage. Now don’t get me started on why marriage equality is a must. Let me instead share with you how the current laws affect same sex couple’s going through the partner visa program.

Firstly there are two visa categories available to the partners of Australians:

  1. The prospective marriage visa and
  2. The partner visa

Couple’s in same-sex relationships can’t apply for a prospective marriage visa. Why? Because of the Marriage Act. The Prospective marriage visa is granted to people who are planning to marry in Australia within 9 months of the visa being granted. For couples in same-sex relationships and in some cases transgender, your are prevented from applying for a prospective marriage visa.  

Having both options is important because again no two relationships are the same. Lawmakers obviously saw a need for both options and these two visa options give couple’s a choice based on which suits their circumstances best. Well heterosexual couples, not same-sex couples.

Now let me explain some of the requirements of the partner visa so you see why it’s important to have both options available especially for same sex couples:

The partner visa, unlike the prospective marriage visa, includes a requirement for couples to prove one of the following:

  1. Lawfully married (in any country) but this again is only for heterosexual couples OR
  2. Have registered civil union in Australia. Civil union is a sub par law available in only some States/or Territories so it’s not available to everyone and if you’re an Aussie overseas with your partner it’s not an option OR
  3. You must have lived together in a 12 month de facto relationship before applying for the visa.

The 12 month de facto requirement can be difficult for some same-sex couple’s as in some countries it’s illegal for gay or lesbian couples to live together or it’s difficult for them to be open about their relationship. It means to meet the de facto requirement some couples have to travel to different countries to meet up and spend time together. And while the Migration Act does allow for a waiver of the 12-month de facto relationship in compassionate and compelling circumstances, this is on a case by case basis and it is certainly not as straightforward.

Another requirement for the partner visa is proving to the decision maker the nature of your commitment; this can mean proving you’re serious about the relationship and you see it as long term. With heterosexual couples who are married, we can prove their serious given they’ve gone the process of marriage because marriage is a big deal to most for many reasons. It could be argued in proving your commitment it seems in some cases marriage carries more weight than registration of relationship or civil union. In a recent decision from the Department of Immigration a decision-maker gave little weight to a registration of relationship certificate given and I quote ‘how easy it is to obtain’

Don’t get me wrong, I’m not knocking the decision-maker. I get it. So do people in same-sex relationships. The significance of marriage is different to civil union or registration of relationship.

Marriage equality is about equal status for Australians and their loved one, in all areas of law including the migration act. It goes without saying at Freedom Migration we support marriage equality for our clients, our friends, our neighbours, our family and our colleagues. As Australians, we should all be afforded the same rights and opportunities when it comes to the person you want to spend the rest of your life with.

For more info on Australian Partner Visa Options check out our FAQ Page

IMPORTANT: Please note, this does not constitute Immigration advice. Always seek advice from a Registered Migration Agent before applying for an Australian Visa. Migration Law is constantly changing. This information is accurate only at the time of publication.

About the Author Emma Drynan MARN0960361

Emma is the founder and principal migration agent at Freedom Migration. She is extremely passionate about uniting partners and families with their loved ones overseas. It might be because she's a product of a partner visa family.

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