Can a couple marry before a prospective marriage visa is granted?

For many couples planning to marry and start a life together in Australia the question often arises; “Can we marry before our Prospective Marriage visa is granted?”. If you are looking for answers to this question, look no further. This article will provide you clarification of the implications of marrying before the prospective marriage visa is granted and guide couples through the correct legal process. 

Understanding the legalities and implications of marrying before securing this visa is crucial for a smooth immigration process, so if you need the assistance of an Australian Migration Lawyer, contact us today!

Overview of the prospective marriage visa

Prospective Marriage Visa (Subclass 300) is designed for individuals who wish to enter Australia to marry their Australian citizen, permanent resident or eligible New Zealand citizen fiancé. This visa allows the holder to enter Australia and marry their intended partner within 9 to 15 months of arrival. It is usually the first step towards a longer-term visa, such as a Partner Visa, which permits an applicant to permanently stay in Australia.

Are you eligible to apply for the Prospective Marriage Subclass 300 visa?

To be eligible for this prospective marriage visa, applicants must meet the following requirements:

• Be 18 years of age or older
• Have a sponsor who are either Australian citizen, permanent resident or eligible New Zealand citizen 
• Intending to marry their partner before the visa period ends 
• Be outside Australia when you apply for this visa, along with any family members that apply with you 
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‍Documents required for a Prospective Marriage Visa application 

It is crucial that you provide substantial evidence that demonstrates the relationship with your partner is authentic, and that you intend to marry. The documents required include a variety of personal documents used to establish your identities, evidence of the genuine nature of your relationship and intention to become married, and several character documents.

Legal stipulations regarding marriage before visa grant

A critical legal stipulation tied to the Prospective Marriage Visa is that the couple must not marry before the prospective marriage visa is granted. This visa requires the marriage to occur in Australia or overseas after the visa holder has entered the country. The marriage must occur during the visa’s validity period and must be after the visa has been granted – that is within nine to 15 months of the visa grant date. It is not a requirement for couples to marry in Australia, but if couples intend to marry overseas, the visa applicant must still enter Australia within the 9 to 15 months visa period before the marriage, thereafter you may depart Australia to marry overseas. The visa applicant must then re-enter Australia within that visa period and apply for the combined subclass 820/801 onshore partner visa.The marriage must also be valid under Australian law. The Australian government stipulates this visa condition to ensure that the visa holder is entering for the purposes of marrying their intended partner.

Implications of marrying before visa grant

As part of the visa grant requirements, it is crucial that visa applicants marry their prospective spouse before the Prospective Marriage visa expires and most importantly, not to marry before the visa is granted. Should a couple decide to marry before their subclass 300 visa is granted, they may face several significant implications: 

• Visa refusal: If the Immigration authorities discover that the couple has married before the visa is issued, the application may be refused. This is because the visa condition - that the visa applicant enters Australia to marry - has not been met.
  
  
• Re-application under a different Visa: In cases where marriage has already taken place, the couple may need to apply for a different visa category. The most common alternative is the Partner Visa (Subclass 820/801 for onshore applicants or Subclass 309/100 for offshore applicants). These visas cater to spouses of Australian citizens, permanent residents, or eligible New Zealand citizens and allow them to stay in Australia permanently. However, partner visas have different requirements, processing times, costs, and the couple must prove the genuineness and continuity of their relationship.
  
  
• Delays and Additional Costs: Applying for a new and different visa after the refusal of your prospective marriage subclass 300 visa can lead to a significant delay and additional costs. The couple may be required to provide evidence and further documentation to support their new visa application. Additionally, the processing times for Partner visas can be lengthy, and therefore extending the delays even further. Refusal and cancellation of visa applications can have a long-term impact on future visa applications
• Refusal and cancellation of visa applications can have a long-term impact on future visa applications. It is important to provide the Department of Home Affairs accurate information in any applications you make, and that includes declaring any previous visa refusals you may have. Whilst refusals may not directly affect future visa applications, immigration officers may still take these into account and it may raise concerns about the applicant’s compliance with the visa, which can potentially affect the outcome of your subsequent application. Although the Australian government can be flexible in this type of situation, it is strongly encouraged for applicants to seek legal advice on these matters, such as from an Australian Migration Lawyer.

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Appropriate steps if already married

Notify the Department of Home Affairs
If a couple decides to marry before they get a decision on their (already lodged) Prospective Marriage Visa, it is crucial that couples ensure that their immigration status is appropriately managed. Therefore, the first and most important step to take if your marital status changes before the decision of Subclass 300 visa is made, is to inform the Department of Home Affairs. Transparency is important, as Prospective Marriage Visas require the intention to marry, Home Affairs must be informed of any changes made prior to making a decision on your Subclass 300 visa application.

After legally marrying and notifying the Immigration Department of the marriage, the applicant can request that their application be converted to a Subclass 309/100 Offshore Partner Visa at the same time. The Immigration Department can then convert the Prospective Marriage visa application to a Subclass 309/100 Offshore Partner Visa application with no further visa application charge payable and the undecided Subclass 300 being withdrawn. 

While this is an option that can be taken, it is critical to understand the potential issues it may present. Converting an undecided Prospective Marriage visa to an Offshore Partner visa has its risks. For instance, the Prospective Marriage visa could be finalised after your marriage, but before the Immigration Department is notified of your marriage, Furthermore, the Immigration Department may conclude that, although being married, you may not have satisfied the definition of ‘spouses’ as part of the requirements of the Offshore Partner Visa.

Seek professional advice 

If your circumstances have changed, navigating visa changes and what steps to take can be complex. Seeking advice from Immigration Lawyers, like Australian Migration Lawyers, can help ensure that you are taking the correct steps and avoid potential pitfalls.