Partner Visa (SC820/801 or 309/100) Requirements for Same-Sex Couples
If you are in a same-sex relationship and wish to apply for a Partner (Subclass 820/801 or 100/309) visa, there are not many differences in the requirements you will need to meet compared to a heterosexual relationship. Since the amendments to the Marriage Act 1961 (Cth) following the 2017 referendum, same-sex marriages have been recognised under the law.
Recognition of foreign marriages
Part VA of the Marriage Act 1961 (Cth) provides for the recognition of foreign marriages, which now includes marriages between same-sex couples. The definition of a valid married relationship under sections 5F and 12 of the Migration Act 1958 (Cth) is linked to the meaning under the Marriage Act 1961 (Cth). As such, if you are married to your partner overseas, then this relationship will be recognised in Australia, and you can apply as their spouse.
What are the requirements for a spouse?
Under section 5F, you will need to show that:
You are in a valid marriage (as defined under the Marriage Act)
You have a mutual commitment to a shared life with your partner to the exclusion of all others
You are in a genuine and continuing relationship
You either live together with your partner or do not live separately and apart on a permanent basis
Considerations that a decision-maker will need to take into account relate to the ‘four pillars’ of a relationship – the financial aspects, the household aspects, the social aspects and the nature of your commitment to each other. You will need to provide enough evidence of these pillars to demonstrate that you are in a genuine relationship.
How do I show that I am in a de facto relationship?
The requirements for a de facto relationship are more onerous as you will need to meet the criteria above, excluding being in a marriage, of course, alongside other additional requirements.
Under regulation 2.03A of the Migration Regulations 1994 (Cth), if you have not been in a de facto relationship for at least 12 months, then you will need to demonstrate that either compelling and compassionate circumstances exist or that your relationship has been registered with under a state or territory law.
What Are Compelling And Compassionate Circumstances?
There is no definition of compelling and compassionate circumstances under any legislation; however, the relevant policy guidelines can provide guidance on these circumstances.
The two policy examples of compelling and compassionate circumstances include situations where there is a dependent child in the relationship or where de facto relationships are illegal in a partner’s home country. The latter will most commonly be applicable in countries where same-sex relationships are illegal.
What are the overall differences?
Most requirements for a Partner visa will not differ for same-sex relationships. However, in instances where you could not legally be in a relationship with your partner in your home country, you can rely upon compelling and compassionate circumstances to bypass the 12-month time requirement. Otherwise, the criteria you will need to meet will remain the same.
How Can Agape Henry Crux Assist
Speak with one of our Accredited Specialists in Immigration Law at Agape Henry Crux, as they specialise in handling highly complex matters such as your partner visa matter. You can schedule an appointment to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. We can also help you arrange an interpreter if this isn't your language.
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.
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