Same-sex marriage can absolutely be used as a basis to apply Partner Visa at Australia, if the relationship and marriage meet the conditions under Australian immigration law. This is an issue many LGBTQ+ couples are concerned about when one person is an Australian citizen or permanent resident of Australia, and the other is in Vietnam or another country.
The important point is that Australian immigration law does not distinguish between opposite-sex spouses and same-sex spouses when determining “spouse”. Migration Act 1958 stipulates that a person can be considered the spouse of another person “whether of the same sex or a different sex” if they meet the conditions of marriage and relationship.
1. Can Same-Sex Marriage Make Partner Visa 820/801?
Yes. If the sponsor is:
- Australian citizen;
- Australian permanent resident; or
- Eligible New Zealand citizen;
then the partner may be eligible for Partner Visa consideration if they meet the criteria of the respective Visa type. For Partner Visa 820/801, current regulations allow applicants to apply based on a spouse or de facto partner relationship with an Australian citizen, Australian permanent resident or eligible New Zealand citizen. This means that two people of the same sex are not disqualified from a Partner Visa simply because of their gender.
2. The Important Thing Is Not “Same Gender Or Different Gender”
When evaluating a marital relationship, Australian immigration authorities are interested in whether the relationship is a real, continuous relationship and whether there is a commitment to building a life together or not. According to the Migration Act 1958, to be considered “spouse”, two people must be in a valid marriage and have:
- A mutual commitment to a life together as husband and wife
- A genuine and ongoing relationship
- The two people live together or do not live separately on a long-term basis.
Therefore, having a marriage certificate is very important, but it doesn’t mean that just having a marriage certificate is a sure thing to be approved.
3. What Does a Same-Sex Visa Partner Document Need to Prove?
When evaluating a relationship, the regulations require considering many different aspects of shared life.
a. Evidence Finance
May include:
- Joint bank accounts;
- Bills and general living expenses;
- Joint loan or financial obligation;
- Jointly owned assets;
- Payments to each other;
- Evidence that two people share expenses in life.
The purpose is to prove that two people actually share financial responsibilities, rather than just having a paper marriage certificate.
b. Evidence of Family Life
Need to show how two people organize their life together, for example:
- Rent or own a house together;
- Living together;
- Share housework;
- Take care of children together, if any;
- Family responsibilities.
This is one of the important groups of evidence when building a Partner Visa profile.
c. Social Proof
For same-sex marriage applications, social proof is also important.
Can consider:
- Both families know about the relationship;
- Friends know and acknowledge the relationship;
- Attend events together;
- Pictures on important occasions;
- Testimony of relatives and friends;
- Evidence shows that the two publicized their relationship in real life.
Don’t just focus on preparing lots of photos to take together. What matters is the continuity and consistency of the relationship story.
d. Proof of Commitment
The profile should also show that the two of you have a plan and are committed to building a long-term life together.
Example:
- Financial plan;
- Housing plan;
- Important decisions are made together;
- Person designated for insurance or benefits;
- Letters and messages during periods of living apart;
- Future plans of both.
e. If Married Abroad
This is a point that needs careful examination. Having an overseas marriage certificate does not automatically qualify you for Australian immigration purposes. The marriage must be amarriage recognized as valid under Australian law for the purposes of the Migration Act.
Therefore, if a same-sex couple is married in another country, it is necessary to check the legal status of the marriage before choosing how to present the Partner Visa application.
f. If I’m Not Married, Can I Get a Partner Visa?
Maybe. Partner Australian visa is not just for married couples. A same-sex couple can also be considered a de facto relationship if they meet the relevant conditions. In particular, Australian regulations define a de facto partner regardless of whether two people are of the same sex or opposite sex.
However, de facto documents need to prove the actual relationship and relevant factors as required by immigration law. In many cases, the length of the relationship is also an issue that requires special attention.
g. Same-Sex Marriage Is Not a Disadvantage When Applying for a Partner Visa
A quite common misunderstanding is that “Partner Visa is for husband and wife, so same-sex marriage will be more difficult to accept.”
Not exactly. Australian immigration law clearly states that a “spouse” can be a person of the same or opposite sex. Therefore, the core issue of the profile does not lie in whether two people are male – male, female – female or male – female. The important thing is: Is the marriage valid? Does the relationship really exist? Are you two committed to building a life together? Is the evidence consistent and strong enough?
h. Checklist of Relationship Evidence
A same-sex Partner Visa profile should be built around many groups of evidence instead of focusing on just one type of document:
| Group of evidence | Example |
|---|---|
| Finance | Joint accounts, bills, living expenses |
| Family | Living together, sharing work home, taking care of children |
| Social | Friends and family know and recognize the relationship |
| Commitment | Future plans, insurance, finances |
| Contact | Messages, calls when living apart |
| Relationship history | Pictures, trips, events and milestones |
| Legal | Marriage certificate, identification documents and related documents |
The more documents, the better. A good set of records should show a comprehensive picture of the relationship, with consistent and consistent evidence over time. Same-sex marriage is recognized in Australia and can be used as the basis for a Partner Visa application, provided the marriage and relationship meet the requirements of immigration law.
For Partner Visa 820/801 or 309/100, it is important not only to prove “we are married”, but also to prove “we are really building a life together”. So, instead of just preparing a marriage certificate and a photo album, build your profile according to 4 main groups of evidence: finances – shared life – society – commitment.
Source: IMM
