Many Australians welcomed the passing of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (‘the Bill’) through the Senate on 30 November, with the House of Representatives expected to vote on the Bill this week. Same-sex marriage visas will soon be a reality.
The Bill, once enacted, will have a number of positive implications for couples in same-sex relationships as well as opening up pathways for same-sex partners to migrate to Australia based on an Australian or overseas marriage. These changes will not create a new class of same-sex marriage visas, but will expand existing visa types to recognise the validity of marriage among same-sex partners.
Overview
Many visas in the Australian visa system allow married or de facto partners of visa holders or Australian citizens or permanent residents to accompany partners in Australia. Typically, this was on the basis of a genuine married or de facto relationship, and permitted partners to obtain visas from Skilled, Employer Sponsored, Student to Partner visas. To date, as the Migration Act deferred to the Marriage Act definition of marriage to exclude same-sex marriages from recognition in Australia, only marriages between men and women were considered valid under the Migration Act. The effect for same-sex couples was that they could only apply for visas as de facto partners, for which they needed to demonstrate a relationship of at least 12 months duration (generally, 12 months cohabitation).
The introduction of the same-sex marriage laws will effectively remove most of the obstacles faced by same-sex couples in obtaining visas for Australia as same-sex marriages conducted in Australia or overseas will be recognised under the Migration Act. This is especially significant for Partner visas, which comprise both onshore (Subclass 820/801) and offshore (Subclass 309/100) streams, as well as an offshore Prospective Marriage (Subclass 300) visa, as it will allow same-sex married couples to migrate without the requisite 12-month cohabitation period.
The changes
The fundamental change is that to the definition of marriage in section 5(1) of the Marriage Act from “the union of a man and a woman” to “the union of 2 people”. As the Migration Act defers to the Marriage Act, the change to the Section 5(1) definition will carry through to the interpretation of the word ‘marriage’ in the Migration Act. Another important amendment is the repeal of section 88EA of the Marriage Act which stated that a union solemnised in a foreign country between same-sex couples must not be recognised as a marriage in Australia. This will allow for the recognition of overseas marriages of same-sex couples, where that marriage is valid under the law of the relevant country.
The Bill also introduces a number of consequential amendments to the Migration Act by removing references to “husband and wife” and clarifying that “marriage” may be between people of the same or opposite sex.
The implications
We expect that effective immediately upon the commencement of the new laws, same-sex partners from overseas will be able to apply for Partner and other visas on the basis of marriage. This will be particularly significant for couples who have faced various impediments to cohabitation. Such couples, if not already married in another country, may consider applying for a Prospective Marriage visa to enter Australia and marry, or apply for a Partner visa once married overseas. Couples already married may be able to lodge the Partner visa immediately upon commencement of the new laws.
The new laws will also extend to a variety of other temporary visa holders, such as Student, Temporary Work – 457 visa holders, and New Zealand citizens who may now be permitted to bring partners to Australia on the basis of a same-sex marriage. For all applications involving a partner relationship, the Department of Home Affairs must be satisfied that the relationship, whether married or de facto, is genuine. This may require the preparation of substantial evidence to demonstrate genuineness for the approval of the visa.
Contact Roam Migration Law today for professional assistance with same-sex marriage visas or other application to bring a partner to Australia.
