De Facto Relationships Recognised Under Partner Visa

When applying for offshore and onshore Partner Visas, one of the most common questions applicants ask is, what the different kinds of de facto relationships are recognised by the Australian Government, and whether or not their union or marriage can be considered valid. 

Although the rules are clear under the Australian Migration Law as mirrored in the Australian Marriage Act of 1961 on what constitutes “valid” forms of marriage, as each country has its own cultures and customs, there is no simple answer.  

However, the Department of Home Affairs (DoHA) has determined the following types of union or marriage as legal and valid for visa application purposes. 

 

Real Consent (De Facto Relationship)

Considered to be the most important factor in a relationship, DoHA uses this criterion to assess whether you and your partner have real consent towards your marriage and whether no party was coerced or forced to enter a relationship or marriage. 

DOHA may rule that consent is non-existent if: 

  1. The relationship or marriage was forged under duress or by fraud; 

  2. One party is mistaken about the identity of their partner, or if they don’t understand the nature of the matrimonial ceremony performed, and; 

  3. One party is mentally incapable of understanding the meaning of marriage or union. 

 

Marriages performed under the Marriage Act 

Unions and marriages done within Australia, unless performed under the laws of a foreign government or officiated by a consular official of that foreign government, are considered solemnised under the Marriage Act. 

Provided real consent was given, all marriages performed under the Marriage Act are in accordance with migration laws, thus rendering the union valid which may be used for Partner Visa applications.  

Documentary evidence such as the marriage certificate, stating that the marriage was solemnised under the Marriage Act. Both the original certificate and a certified true copy must be presented upon visa application. 

 

Marriages performed outside Australia 

The applicability of foreign marriages to Australian migration laws depends on whether or not the union or marriage was officiated in the country where it was performed. This is the reason why a marriage solemnised outside Australia but not recognised in the area where it was performed – will not be deemed valid.  

For example, a same-sex couple who was married in a country where a same-sex union is not acknowledged will not be recognised as married under Australian migration laws. Even though same-sex marriage is already accepted in Australia. 

 

Arranged Marriages 

In some cultures, families arrange marriages for their children, with some at a relatively young age. However, in order for their union to be granted under Australian laws, they must prove that the marriage has been accepted in their home country and that both parties have given their consent to the marriage in order to qualify for a Partner Visa or Prospective Marriage Visa (Subclass 300). 

Otherwise, marriages under this setup would give DoHA the impression that the marriage was done under families coercion or cultural pressure, and wouldn’t be honoured as a valid marriage. 

 

Proxy Marriages 

The law defined Proxy Marriage as a legal type of marriage in which an authorised person signs marriage documents on behalf of either the groom or the bride. In countries where proxy marriage is legal, Australia also recognises marriages made under this.  

While Australian law requires consent in person from both parties upon marrying, couples who were married by proxy should be able to prove that: 

  1. The law of the country where they got married solemnised their union, and consent was given to their proxies; 

  2. The marriage was according to existing applicable laws in the country, and; 

  3. The marriage was consensual. 

 

Polygamous Marriages 

Polygamous marriages, or marriages in which there are more than two persons concurrently in a relationship, violate one of the factors in establishing a de facto relationship.  

Although this form of marriage is accepted and valid in some countries, this is not a valid form of union for a Partner Visa application.  

 

How Can Agape Henry Crux Help  

At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are specialised in handling highly complex matters.  You may schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or email us at info@ahclawyers.com.  

We speak fluent English, Korean, Japanese, Mandarin, and Malay. If this isn’t your language, we can also help you arrange an interpreter.  

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office. 

 

FREQUENTLY ASKED QUESTIONS (FAQs) 

  • Eligible sponsors may only sponsor two (2) spouses, fiancés, or de facto partners. It is also important to understand that the sponsor only has a minimum of five (5) years required in between each sponsorship. 

  • The grant of a permanent partner visa (i.e.: subclass 801 and subclass 100) will not change any conditions even after the relationship is broken; the visa will still be valid. If the relationship broke down within two (2) years from the grant of either visa, the applicant is required to notify DoHA. 

  • Although there is no age limit imposed for both Partner visa sponsors and applicants, they must be at least 18 years of age to qualify. 

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