Australian partner visas for same-sex marriages

In 2017 the Australian Government amended the Marriage Act to allow for marriage equality. Prior to this, same-sex couples could apply for a partner visa as a de facto partner. However, the change to the Marriage Act means that same-sex couples can now apply for a partner visa as a spouse or for a prospective marriage visa. 

This article will provide an overview of the application process for a partner visa in Australia and will act as a guide for couples considering making an application by discussing the relevant legal rights and considerations. 

Of course, if same-sex couples require additional assistance through this process Australian Migration Lawyers are always ready to provide support.

Legal recognition of same-sex marriages in Australia

Since 2007, surveys demonstrated that most of the Australian electorate supported marriage equality. However, it was not until December 9, 2017, that Australian law officially recognized same-sex marriages, amending the Marriage Act to redefine marriage as "the union of 2 people to the exclusion of all others, voluntarily entered into for life." This change significantly impacted Australian partner visas for same-sex marriages, enabling married same-sex couples to apply for partner visa applications based on their marital status.

Prior to these amendments, same-sex couples, including those legally married overseas, were unable to have their marriages legally recognized in Australia. Instead, they could only apply for a same-sex partner visa as a de facto couple if they met all legislative requirements. However, the changes to the Marriage Act and section 5F of the Migration Act altered the definition of "spouse" to include those in same-sex relationships, allowing same-sex partner visa applications in the same manner as heterosexual couples.

Same-sex clients can now apply for various partner visa categories, including the temporary partner visa subclass 820 and the permanent partner visa subclass 801, as well as the prospective marriage visa subclass 300. The Department of Home Affairs recognises overseas marriages and processes same-sex partner visas, allowing visa applicants to transition from provisional partner visas or bridging visas while awaiting their visa grant. Same-sex couples can also apply for Australian citizenship once eligible.

These reforms signify a major shift in Australian law, aligning the recognition of same-sex relationships with that of married heterosexual couples, providing equitable pathways for sex couples seeking permanent residency in Australia through main partner visas. This means that same-sex couples are able to apply for a  partner visa (820/801), a prospective marriage visa (subclass 300) and a partner visa (309/100) for offshore applicants.  

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Eligibility criteria for partner visas

The eligibility requirements for each type of partner visa, including temporary partner visas and permanent partner visas, vary. However, unlike tourist visas or student visas, partner visas, including those for same-sex couples, provide a pathway to permanent residency, making the application process more stringent. Key eligibility requirements for all partner visa applicants include:

• You must be in a genuine relationship with your sponsoring Australian partner, who must be an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. 
• You must have met your partner in person at least once.
• 您必須年滿 18 歲（適用有限豁免）。
• You must meet health and character requirements.

Same-sex partner visas, including for married same-sex couples and those in a de facto relationship, are recognized in Australia. However, it is important to recognize that in at least 67 countries, national laws criminalize same-sex relationships. As a result, same-sex partners may face challenges in proving the legitimacy of their relationship, especially when coming from jurisdictions that force them to keep their relationship hidden. In such cases it may be useful to speak to an Australian Migration Lawyer for guidance and support.

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Types of partner visas available for same-sex couples

Same-sex couples are eligible to apply for a partner visa (820/801), a prospective marriage visa (300) and a partner visa (309/100). This part of this article will discuss the difference between each of these visas and the eligibility requirements that apply. 

‍Partner Visa (820/801)

A 820/801 partner visa is available to the spouse or de facto partner of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. This type of visa can be applied for by applicants who are already onshore within Australia. 

Subclass 820 and 801 are two different types of visas. The main difference between the two is that the 820 Visa is a temporary visa and the 801 is a permanent visa. In most circumstances, if an applicant is able to satisfy all of the requirements they will be granted a subclass 820 visa first. This allows the applicant to live, work, study and travel without restriction and in most circumstances Medicare will also be accessible. After two years on the subclass 820 visa applicants will become eligible to apply for the subclass 801 visa. Once the 801 visa is granted applicants become an Australian permanent resident and enjoy all of the benefits permanent residents are entitled to. 

Same-sex couples who are in a de facto relationship or who are married to an Australian citizen, Australian permanent resident or an eligible New Zealand citizen and are already in Australia are able to apply for the 820 and 801 partner visas. As mentioned earlier, same-sex couples who have been married overseas can now have their marriage legally recognised in Australia.  

Eligibility requirements for a subclass 820/801 partner visa include:

• 申請時您必須在澳大利亞
• 您必須與您的擔保澳大利亞伴侶（澳大利亞公民、澳大利亞永久居民或符合條件的紐西蘭公民）保持真正的關係
• Your sponsoring Australian partner must be either your spouse (married) or your de facto partner
• 您必須年滿 18 歲（適用有限豁免）
• 您必須滿足健康和品格要求

准結婚簽證 （300）

Applicants planning to marry an Australian citizen, Australian permanent resident or eligible New Zealand citizen may be eligible to apply for a prospective marriage visa. The successful granting of this visa allows the applicant to enter and stay in Australia for up to 15 months in order to marry their prospective spouse. Applicants must be offshore in order to apply for this visa. 

Once the subclass 300 visa has been granted and the applicant has married their fiance they can apply for a partner visa (subclass 820/801) in order to obtain permanent residency. Once a subclass 300 visa has been granted applicants can travel to Australia, engage in unrestricted work, study freely and move in and out of Australia within the visa period granted. 

Since the changes to the Marriage Act, the prospective marriage visa is now available to same-sex couples. 

Eligibility requirements for a subclass 300 prospective marriage visa include:

• You must be offshore at the time of application
• You must have met your spouse-to-be in person at least once
• You must intend to marry your prospective spouse within the visa period granted
• You must intend to live together
• 您必須年滿 18 歲（適用有限豁免）
• 您必須滿足健康和品格要求

‍Partner Visa Subclass 309/100

De facto partners, as well as spouses of an Australian citizen, Australian permanent resident or eligible New Zealand citizen may be eligible to apply for a Partner visa 309/100. In both cases this also applies to same-sex couples. 

The subclass 309 visa is provisional, while the 100 is permanent. Both of these visas can be applied for at the same time. Once the 309 visa is granted applicants may travel to Australia where they can reside, work, study, travel and access Medicare services. After two years on the subclass 309 visa applicants may apply for the subclass 100 visa. Once this is granted the applicant becomes an Australian resident. 

Eligibility requirements for a 309/100 partner visa include:

• 申請時您必須在澳大利亞
• 您必須與您的擔保澳大利亞伴侶（澳大利亞公民、澳大利亞永久居民或符合條件的紐西蘭公民）保持真正的關係
• Your sponsoring Australian partner must be either your spouse (married) or your de facto partner
• 您必須年滿 18 歲（適用有限豁免）
• 您必須滿足健康和品格要求

Application process for same-sex couples

The first step in applying for a partner visa is thorough preparation. Applicants should ensure they have collected all necessary supporting documents required for the application. This includes essential identity documents. These documents establish your personal identity and legal status.

In addition to identity documents, applicants must provide character documents These documents help verify your background and character.

For evidence of the relationship, it is important to include details about the nature of your household, the financial aspects of your relationship, and the social and emotional dimensions of your commitment. Gathering and presenting detailed and compelling evidence will facilitate a smoother processing of the application by the department.

Challenges and how to overcome them

Common Challenges:

One of the main challenges faced by same-sex couples applying for partner visas is the discrepancies in legal recognition of relationships across different countries. For couples from countries where same-sex relationships are not legally recognized, proving the legitimacy of their relationship can be particularly complex. Additionally, gathering sufficient documentation to demonstrate the authenticity of the relationship can be challenging, especially when navigating varying legal standards and requirements.

Strategies to Overcome Challenges:

To address these issues, it’s crucial to provide thorough and comprehensive documentation of your relationship. This includes presenting joint financial records, shared residential arrangements, and evidence of social interactions. Seeking legal advice from an Australian Migration Lawyer can also be immensely helpful. They can guide you through the complexities of the application process, ensuring that your evidence meets all requirements and that you effectively navigate any challenges that arise.