Partner Visa Unrecognised Overseas Marriage

An overseas marriage recognised in Australia is a marriage that was valid under the law of the country where it took place and that is not caught by any exception in Australian law. If the marriage passes both parts of that test, an overseas marriage recognised in Australia can support a spouse partner visa. If it does not, the couple must rely on another pathway, usually the de facto definition, a fresh valid marriage or the Subclass 300 Prospective Marriage visa.

This guide explains the legal test for an overseas marriage recognised in Australia for partner visa purposes. It covers Part VA of the Marriage Act 1961, section 12 of the Migration Act 1958, the exceptions in section 88D, and the marriages that most often fail: religious-only or customary ceremonies, proxy marriages, polygamous marriages, underage marriages, marriages without real consent, and marriages that follow a foreign divorce Australia does not recognise. It then explains what to do if the marriage is not recognised, and the evidence that proves it is.

For the full picture of every partner visa subclass, read our complete guide to partner visas in Australia. This article deals only with whether the marriage itself counts. Our overview of partner visa lawyer services in Australia explains how legal advice fits into the process, and our guide to booking an immigration lawyer consultation explains what to bring.

When is an overseas marriage recognised in Australia?

An overseas marriage is recognised in Australia when it was valid under the local law of the country where it was solemnised at the time it took place, and none of the exceptions in section 88D of the Marriage Act 1961 applies. That is the core rule in Part VA of the Marriage Act, which deals with the recognition of foreign marriages.

Section 88D(1) states that, subject to the exceptions, a marriage to which Part VA applies "shall be recognised in Australia as valid". Section 88C decides which marriages Part VA applies to. In broad terms, it applies to a marriage solemnised in a foreign country that was recognised as valid under the local law when it was solemnised. It also applies to some marriages solemnised by or in the presence of a diplomatic or consular officer of another country.

So the test for an overseas marriage recognised in Australia has two parts:

• Local validity. The marriage must have been valid under the law of the place where it happened. If the foreign country itself does not treat the marriage as valid, Australia will not treat it as valid either.
• No Australian exception. Even a marriage that is valid where it took place will not be recognised if, for example, one party was still married to someone else, the parties are within a prohibited relationship, a party was underage in the way the Act describes, or a party did not give real consent.

Most couples who married overseas meet both parts without difficulty. A civil marriage, registered with the local authorities, between two adults who were free to marry and who both consented, is an overseas marriage recognised in Australia in the ordinary case. The problems arise at the edges, and those edges are where partner visa refusals happen.

Why the overseas marriage recognised in Australia question matters for a partner visa

The overseas marriage recognised in Australia question matters because a partner visa applicant who relies on marriage must be the "spouse" of the sponsor, and a person is only a spouse if the marriage is valid for the purposes of the Migration Act.

Section 5F of the Migration Act 1958 defines when two people are in a married relationship. One of the requirements in section 5F(2) is that they are married to each other under a marriage that is valid for the purposes of the Act. The other requirements are a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. Regulation 1.15A of the Migration Regulations 1994 then sets out the four aspects the decision maker considers: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons' commitment to each other.

If the marriage is not valid for the purposes of the Act, the couple cannot be spouses, however genuine their relationship is. The Department's own policy says that where a marriage is not recognised, the relationship is to be assessed against the de facto definition in section 5CB instead. That shift can be harmless, or it can be fatal, depending on the couple's history. A couple who married quickly and never lived together may not meet the de facto requirements at all.

This is why an overseas marriage recognised in Australia is the first thing to check, not the last. Our Subclass 820 partner visa guide sets out the wider onshore requirements. The marriage question affects:

• the onshore Subclass 820 partner visa, where a married applicant must be the spouse of the sponsor when the application is made;
• the offshore Subclass 309 partner visa, where the marriage must be valid under section 12 of the Act before the visa can be granted;
• the Subclass 300 Prospective Marriage visa, where the intended marriage must be capable of recognition under Australian law; and
• the permanent Subclass 801 and Subclass 100 stages, where the relationship is tested again.

Our guide to the Subclass 820 onshore partner visa explains the rest of the onshore criteria, and our article on Subclass 820 vs Subclass 801 explains the two stages.

The legal test: Part VA of the Marriage Act and section 12 of the Migration Act

The legal test for an overseas marriage recognised in Australia for migration purposes is Part VA of the Marriage Act 1961, applied through section 12 of the Migration Act 1958 with one important change: section 88E is treated as if it did not exist.

Section 88C: which overseas marriages Part VA covers

Section 88C is the gateway. Part VA applies to a marriage solemnised in a foreign country if, under the local law, the marriage was recognised as valid at the time it was solemnised.

Section 88C(2) adds a second route. A marriage that was not valid under local law when it was solemnised can come within Part VA later, from the time it becomes recognised as valid under the local law. This matters where a foreign country allows a marriage to be validated or registered after the ceremony. The overseas marriage recognised in Australia in that situation is recognised from the time the local law recognises it, not from the date of the original ceremony. That date can matter a great deal when the question is whether the couple were spouses on the day a partner visa application was lodged.

Section 88D: when a foreign marriage is not recognised

Section 88D(2) sets out the main exceptions. A marriage that Part VA would otherwise recognise is not recognised as valid where:

• at the time of the marriage, either party was married to someone else and that earlier marriage was recognised as valid in Australia;
• either party was domiciled in Australia and either party was not of marriageable age within the meaning of Part II of the Marriage Act;
• the parties are within a prohibited relationship within the meaning of section 23B; or
• the consent of either party was not a real consent for a reason set out in section 23B(1)(d): duress or fraud, mistake as to identity or the nature of the ceremony, or a failure to understand the nature and effect of the ceremony.

Section 88D(3) adds a rule for underage marriages where neither party was domiciled in Australia: the marriage is not recognised while either party is under 16. Section 88D also contains rules about marriages that are voidable under the local law, and about an earlier invalid marriage followed by a later valid one.

Each exception is explained in detail later in this guide. The important point here is that local validity is necessary but not sufficient. An overseas marriage recognised in Australia must clear both hurdles.

Why section 88E does not help a partner visa applicant

Section 88E of the Marriage Act recognises some foreign marriages that would be valid under the common law rules of private international law even though Part VA does not otherwise require their recognition. For family law and many other purposes, that provision widens recognition.

For a partner visa, it does not. Section 12 of the Migration Act provides that, in deciding whether a marriage is recognised as valid for the purposes of the Act, Part VA applies as if section 88E were omitted. The Department's own partner visa guidance confirms this: the Act does not recognise marriages that are recognised in Australia solely because of the common law rules of private international law.

This is one of the points most often misunderstood. A family lawyer may correctly advise that a marriage is recognised in Australia for property or divorce purposes, while the same marriage is not an overseas marriage recognised in Australia for migration purposes. The test in the Migration Act is narrower. A couple should never assume that recognition for one purpose means recognition for a partner visa.

Marriages solemnised under the Marriage Act outside Australia

Not every marriage that takes place overseas is a "foreign marriage". The Marriage Act allows authorised Australian consular officers and Australian Defence Force chaplains to solemnise marriages outside Australia under the Marriage Act itself. Those marriages are evidenced by a certificate issued under the Marriage Act and are treated as Australian marriages, not as foreign marriages under Part VA.

The reverse can also occur. A marriage solemnised inside Australia by a consular official of a foreign government, under that government's law, can be a foreign marriage for Part VA purposes. These cases are rare, and the Department's guidance treats them as matters for specialist referral. Where a couple's marriage was performed at a foreign embassy or consulate in Australia, the validity of the marriage should be checked carefully before it is relied on.

Is my marriage valid in the country where it took place?

A marriage is valid in the country where it took place when it complied with that country's law on who may marry, how the marriage must be performed and, where the local law requires it, how it must be registered. Whether an overseas marriage recognised in Australia is valid at the local level is therefore a question of foreign law, decided on evidence.

The questions that usually decide local validity are:

• Form. Did the ceremony follow the form the local law requires? Some countries recognise only civil ceremonies. Others recognise religious ceremonies performed by authorised officiants. Some recognise customary marriages that meet set conditions.
• Registration. Does the local law make registration a condition of validity, or only a matter of record? In some countries a marriage is not legally valid until it is registered with the civil authority. In others, registration simply proves a marriage that is already valid.
• Capacity. Were both parties legally free and old enough to marry under the local law? A party who was still married, or who had not obtained a divorce that the local law recognised, may not have had capacity.
• Foreign parties. Some countries apply special rules where one party is a foreign national. A marriage may need a certificate of no impediment, consular approval or another step before it is valid.

The Department's policy instructs decision makers to consider the local law, and where there is doubt to seek advice from a local government agency or refer the case internally. In practice, a couple who want an overseas marriage recognised in Australia should not wait for that. Where there is any doubt, evidence of the local law and of the registration of the marriage should be prepared before lodgement. Our partner visa document checklist explains the wider set of documents a partner visa needs.

The Tribunal has repeatedly decided cases on exactly this point. In Kammoun (Migration) [2020] AATA 3279, a Subclass 300 review, the reported issue was that the visa applicant and sponsor had married in Lebanon and that the foreign marriage was recognised under the local civil law. Al Khamisy (Migration) [2020] AATA 5960, Bui (Migration) [2020] AATA 4884, Seifeddine (Migration) [2019] AATA 2756 and Ho (Migration) [2019] AATA 2750 were also Subclass 300 reviews in which the reported issue was that the parties were now validly married and the foreign marriage was recognised under the local civil law. In Bui, the marriage took place in Vietnam. These remittals show the Tribunal looking first at the local civil law when deciding whether an overseas marriage is recognised in Australia.

Registration delays and late registration

A marriage that has been celebrated but not yet registered is a common problem. Where the local law makes registration a condition of validity, an unregistered marriage may not yet be an overseas marriage recognised in Australia. Where registration is only evidence, the marriage may already be valid, but the couple will still need proof.

Because section 88C(2) recognises a marriage from the time it becomes valid under local law, late registration can fix the problem going forward. It may not fix it backwards. If an onshore Subclass 820 application was lodged on the basis of a marriage that was not yet valid on the day of lodgement, the applicant was not a spouse on that day. The application may then depend on whether the couple were de facto partners at that time instead. That is why the date of local validity, not just the date of the wedding, must be established before lodgement.

Translations and certified copies

Every marriage document not in English must be accompanied by an accurate English translation. Translations should be complete, including stamps, seals and annotations, because those often record registration details. Inconsistent dates between a certificate, a registration extract and an earlier visa application can raise concerns about validity and integrity. Our guide to partner visa evidence explains how documents are assessed, and our article on what evidence you need for an 820 partner visa sets out the onshore evidence.

Foreign same-sex marriages

A same-sex marriage solemnised overseas is an overseas marriage recognised in Australia on the same basis as any other foreign marriage, provided it was valid under the local law and no section 88D exception applies. From 9 December 2017, Part VA recognises same-sex marriages solemnised before or after that date where the marriage was valid under the local law when solemnised. Our page on LGBTI and same-sex partner visas explains how the relationship criteria apply where a marriage could not be registered in a party's home country.

Are religious-only or customary marriages recognised in Australia?

A religious-only or customary marriage is recognised in Australia only if the law of the country where it took place treats that ceremony as a valid marriage. If the local law requires a civil ceremony or civil registration and the couple had only a religious or traditional ceremony, the marriage is generally not an overseas marriage recognised in Australia.

This is one of the most common reasons a couple who consider themselves married cannot rely on their marriage for a partner visa. In many communities the religious or traditional ceremony is the event that matters socially. Families attend, gifts are given and the couple are treated as married from that day. Civil registration may be seen as a formality, or may be delayed for practical reasons. Australian law does not look at the social meaning of the ceremony. It asks whether the local law recognised the marriage as valid.

The answer differs from country to country:

• In some countries, a religious ceremony performed by an authorised religious officiant creates a legally valid marriage, and registration simply records it.
• In others, only a civil marriage before a state official is valid, and a religious ceremony has no legal effect on its own.
• In others again, a customary or religious marriage is valid only once it is registered with the civil authorities within a set time.

A couple whose ceremony falls into the second or third category, without the required civil step, generally does not have an overseas marriage recognised in Australia. Their relationship may still be genuine. It simply cannot be assessed as a marriage.

The Tribunal remittal in Phan (Migration) [2022] AATA 251, a Federal Circuit Court remittal of a Subclass 300 matter, illustrates the point. The reported issues were the parties' genuine intention to marry and live together, and a traditional, unregistered marriage in the home country. The couple had held a traditional ceremony, but the matter proceeded as a Prospective Marriage visa, which is a pathway for couples who intend to marry. A traditional ceremony that has no civil effect does not make the couple spouses, but it can be strong evidence of commitment.

In Mahrami (Migration) [2019] AATA 4654, a Subclass 309 matter, the reported issues included a valid marriage, a religious wedding not properly registered in the home country and a remarriage in another country. The case shows how a later, properly registered marriage can be used where the first ceremony did not create a valid marriage.

What religious-only marriage means for the four aspects

A religious or customary ceremony that is not legally valid is still relevant evidence. It can show the nature of the commitment and the social aspects of the relationship, because the couple presented themselves publicly as married. Invitations, photographs, Form 888 statements from people who attended and the ceremony record can all support the genuineness of the relationship.

What the ceremony cannot do is satisfy the "valid marriage" element of section 5F. That element must be met by an overseas marriage recognised in Australia, or by a marriage solemnised under the Marriage Act. Couples whose concern is the meaning of a ceremony within a mixed-faith relationship, rather than its legal validity, are dealing with a different issue from the one covered here.

Our guides to Form 888 supporting statements and to Form 888 example answers and common mistakes explain how witnesses to a ceremony can support the relationship. Form 888 is a supporting statement, not a statutory declaration.

Is a proxy marriage recognised in Australia for a partner visa?

A proxy marriage can be an overseas marriage recognised in Australia if the law of the country where it was solemnised permits consent by proxy, the marriage was solemnised in accordance with that law, and both parties gave real consent. Australian law requires both parties to give consent in person for a marriage under the Marriage Act, but Part VA can still recognise a valid foreign proxy marriage.

The Department's policy on proxy marriages requires the decision maker to be satisfied of three things:

• the law of the country where the marriage was solemnised permits consent to be given by proxy;
• the marriage was solemnised in accordance with that law; and
• both parties gave real consent to the marriage.

If those three requirements are met, the marriage may be recognised for the purpose of section 5F(2)(a). The couple must still satisfy the other parts of section 5F: the mutual commitment, the genuine and continuing relationship, and living together or not living apart permanently.

Proxy and remote marriages attract close scrutiny. A decision maker will want to know why the couple did not marry in person, whether the absent party genuinely consented, and whether the couple have spent real time together. The real consent question is especially important, because the proxy arrangement makes it harder to show that the absent party understood and agreed to the marriage. A proxy marriage that the local law did not authorise, or that did not follow the local procedure, is not an overseas marriage recognised in Australia.

Online marriages conducted through a foreign jurisdiction raise similar questions. Whether they are valid depends on the law of the jurisdiction that registered them and on where the marriage is treated as having been solemnised. These cases should be assessed individually before they are relied on. Couples deciding whether to handle a doubtful marriage themselves can read partner visa lawyer vs doing it yourself.

Are polygamous marriages recognised for a partner visa?

No. Only the first marriage in a polygamous situation is capable of being recognised as a valid marriage for the purposes of the Migration Act, and a person in a concurrent polygamous marriage cannot meet the "exclusion of all others" requirement in section 5F(2)(b).

Section 88D(2)(a) of the Marriage Act stops recognition of a marriage where, at the time of the marriage, either party was already married to someone else and that earlier marriage was recognised as valid in Australia. A second marriage entered into while the first was still in force is therefore not an overseas marriage recognised in Australia, even if the foreign country permits polygamy.

The Department's policy goes further. It states that a second, concurrent marriage is not a valid marriage under the Act even if it later becomes the only ongoing marital relationship, for example where the first spouse has died or the first marriage has since been dissolved. The ending of the first marriage does not cure the non-recognition of the second.

The parties to that surviving second marriage are not left without an option. The Department's policy confirms they are capable of meeting the de facto definition in section 5CB, provided theirs is the only ongoing partner relationship and any other marriage or de facto relationship has ended by death, divorce or permanent separation. Where the parties are now free to marry, a fresh marriage that is valid in its own right is another option. Each step should be planned carefully, because the timing of the de facto relationship and of any new marriage both matter. A polygamous second marriage is never an overseas marriage recognised in Australia, so the application must be built on another basis. Where a relationship ends during processing for other reasons, our article on what happens if the relationship breaks down explains the position.

Are underage overseas marriages recognised in Australia?

Some are and some are not. Whether an underage overseas marriage is recognised in Australia depends on the ages of the parties at the time of the marriage and on whether either of them was domiciled in Australia at that time.

The Department's policy summarises the position under section 88D:

• Neither party domiciled in Australia, both at least 16. The marriage is recognised if it was valid in the country where it was solemnised.
• Neither party domiciled in Australia, one or both under 16. The marriage is not recognised while either party is under 16, but becomes recognised once the younger party turns 16.
• Either party domiciled in Australia. The marriage is not recognised if either party was under Australian marriageable age at the time of the marriage.

Where an underage marriage is not recognised because a party was domiciled in Australia, the marriage is incapable of being an overseas marriage recognised in Australia. The couple may instead be assessed as de facto partners once both are at least 18, because the Regulations require both parties to a de facto relationship to be at least 18.

Why domicile matters

Domicile is a legal concept, not just a question of where someone lives. A person's domicile is broadly the place they treat as their permanent home. An Australian citizen who has lived overseas for many years may no longer be domiciled in Australia. A person who has moved to Australia intending to stay may have acquired an Australian domicile. Domicile is decided on the facts, and the Department's policy lists relevant factors for decision makers to consider. In an underage marriage case, domicile can decide whether the marriage is an overseas marriage recognised in Australia or not, so it must be addressed with evidence.

Prohibited relationships and real consent

A foreign marriage between people within a prohibited relationship, or a marriage in which either party did not give real consent, is not an overseas marriage recognised in Australia, whatever the local law says.

Prohibited relationships

Under the Marriage Act, a marriage between a person and their ancestor or descendant, or between siblings, whether of the whole or half blood and including adoptive relationships, is void. Section 88D(2)(c) applies the same rule to foreign marriages. Marriages between cousins, and between an aunt or uncle and a niece or nephew, are not prohibited by the Marriage Act. A cousin marriage that was valid where it took place is therefore capable of being an overseas marriage recognised in Australia, although the Department may look closely at the relationship.

Real consent and forced marriage

Section 88D(2)(d) stops recognition where a party's consent was not real because it was obtained by duress or fraud, because the party was mistaken about the identity of the other party or the nature of the ceremony, or because the party did not understand the nature and effect of the ceremony.

An arranged marriage is not the same as a forced marriage. The Department's policy confirms that the fact a marriage was arranged by relatives, friends or a marriage broker does not, by itself, affect recognition. What matters is whether both parties genuinely consented. The Department does look more closely at whether an arranged marriage meets the commitment and genuineness elements of section 5F, and the couple should be ready to show how the relationship has developed since the marriage.

Where there is any indication of forced marriage, decision makers are directed to act with care and sensitivity. A person who is in, or at risk of, a forced marriage should seek confidential advice immediately. Our guide to urgent immigration lawyer advice explains what to prepare. Where a sponsored partner experiences family violence, special provisions may also apply, as our family violence partner visa page explains. The question of real consent is decided on evidence, and the person's safety comes first.

Previous marriages and foreign divorces

An overseas marriage is not recognised in Australia if either party was still married to someone else at the time, and an earlier marriage only ends in law when it is dissolved by a divorce that Australia recognises, annulled, or ended by death. That makes the validity of any earlier divorce a direct part of the recognition question.

Australian divorces

An Australian divorce is granted under the Family Law Act 1975. A divorce order generally takes effect one month and one day after it is made, unless the court orders otherwise. A marriage entered into before the divorce order takes effect is entered into while the earlier marriage is still in force. That later marriage is not an overseas marriage recognised in Australia, even if the foreign country registered it.

Foreign divorces

Under section 104 of the Family Law Act, Australia recognises an overseas divorce if it was effective under the law of the country where it was obtained and, in general terms, at least one party had a specified connection with that country, such as domicile or nationality, when the proceedings began. The Department's policy notes that questions most often arise where a party travelled to a country briefly to obtain a divorce, or where the divorce was granted only under customary or religious practice.

A religious divorce that has no civil effect may not end the marriage in law. If either party relied on such a divorce before entering the new marriage, the new marriage may not be an overseas marriage recognised in Australia.

The reverse problem also arises. In Kandel (Migration) [2024] AATA 160, a Subclass 309 matter, the reported issues included that an Australian divorce was not recognised in Nepal and that there were different registered marriage dates. Where a divorce is valid in Australia but not recognised in the country of the new marriage, the local registration of the new marriage may be affected, and the dates in the documents may not match. Each inconsistency must be explained with evidence.

In 1706602 (Migration) [2019] AATA 5299, a Subclass 309 matter, the reported issues were the validity of the marriage with the sponsor, the status of the visa applicant's previous marriage, and the marriage being solemnised and recognised as valid under local laws. The case shows the Tribunal examining the earlier marriage as part of deciding whether the current marriage is an overseas marriage recognised in Australia.

This article deals with divorce only as it affects whether a new marriage is valid. Our guide to partner visa evidence of a genuine relationship explains the wider evidence, and the Form 80 personal particulars guide explains how previous marriages are disclosed.

Bogus or inconsistent marriage certificates and PIC 4020

A marriage certificate that is bogus, or marital status information that is false or misleading, can lead to refusal under public interest criterion 4020, separately from the question of whether the marriage is recognised. PIC 4020 is the integrity criterion in Schedule 4 to the Migration Regulations 1994.

In CHEN (Migration) [2022] AATA 3269, a Subclass 309 matter, the reported issues were a bogus marriage certificate, false information about marital status in China, compassionate or compelling circumstances and mental health issues. In Faruque (Migration) [2024] AATA 3889, a Subclass 309 matter, the reported issues were that the applicant was said to have submitted a bogus document, independent information about the marriage registration process, and a finding that the marriage certificate submitted was not a bogus document. Both cases show that a marriage certificate is tested, not simply accepted, and that the local registration process can become evidence in its own right.

Inconsistency is the usual trigger. A different marriage date in a visitor visa application, a marital status recorded as single in an earlier student visa application, or a certificate whose details do not match the registry record can all prompt questions. Where the overseas marriage recognised in Australia is relied on, every earlier statement about marital status should be checked against it before lodgement. If the Department raises a concern, it will usually do so in a section 56 request for more information or an S57 natural justice letter, and the response must deal with the documents and the law together. An integrity finding can defeat an application even where the couple do have an overseas marriage recognised in Australia. Where an earlier refusal already exists, our article on applying for a partner visa after a visa refusal explains the restrictions.

Couples who later find that information in a lodged application was wrong can notify the Department of incorrect answers. Our guide to Form 1022 change of circumstances explains how changes are notified during processing.

What happens if your overseas marriage is not recognised in Australia?

If your overseas marriage is not recognised in Australia, you cannot be assessed as a spouse, but that does not end your partner visa options. The Department's policy directs that the relationship be assessed against the de facto definition instead, and a couple may also be able to validate the marriage, marry again or use a different visa pathway.

The right option depends on the couple's history, where the applicant is, and what has already been lodged. Not having an overseas marriage recognised in Australia changes the route to a partner visa, but it rarely closes every route. The main options are set out below.

Option 1: rely on a de facto relationship

A couple whose marriage is not an overseas marriage recognised in Australia may still be de facto partners under section 5CB of the Migration Act. They must have a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, live together or not live separately and apart on a permanent basis, and not be related by family. Regulation 1.09A sets out the four aspects the decision maker considers for de facto partners.

The usual additional requirement is that the de facto relationship existed for at least 12 months immediately before the application. That requirement does not apply where the relationship is registered under a law of an Australian state or territory listed in the Regulations, or where compelling and compassionate circumstances exist. Our guides on the de facto partner visa and the 12-month rule and on whether you really need 12 months of de facto relationship for a Subclass 820 visa explain the rule and its exceptions.

The de facto route works well for couples who have lived together for a substantial period. It is harder for couples who married soon after meeting and have spent little time living together, which is often the very situation in which a ceremony-only marriage arises.

Option 2: validate or register the existing marriage

Where the marriage failed only because a local registration step was not completed, it may be possible to register the marriage with the local civil authority. Section 88C(2) recognises a marriage from the time it becomes valid under the local law. Late registration can therefore turn a ceremony into an overseas marriage recognised in Australia from the date of registration. Whether that date is early enough depends on the visa and on when the application was or will be lodged.

Option 3: marry again in a form that is valid

A couple who are free to marry can marry again, either in Australia under the Marriage Act or overseas in a form the local law recognises. A marriage solemnised in Australia by an authorised celebrant, after a Notice of Intended Marriage has been given, is a valid marriage under the Marriage Act and does not depend on Part VA at all. The Marriage Act also allows a couple who are uncertain about the validity of an earlier marriage to each other to go through a further ceremony.

A fresh marriage cannot cure a problem that arises from one party still being married to someone else. The earlier marriage must first be ended by a divorce that Australia recognises. Where that is the issue, the timing of the divorce, the separation and the new marriage all need to be planned before anything is lodged.

Option 4: the Subclass 300 Prospective Marriage visa

Where the applicant is outside Australia and the couple intend to marry, the Subclass 300 Prospective Marriage visa may suit. At the time of decision there must be no impediment to the intended marriage in Australian law, which means both parties must be free to marry and the intended marriage must be capable of recognition under Australian law.

Many Tribunal remittals arise where a couple married after a Prospective Marriage visa refusal. In Kammoun, Al Khamisy, Bui, Seifeddine and Ho, each described earlier in this guide, the reported issue was that the parties were now validly married and the foreign marriage was recognised under the local civil law. In those cases, the validity of the overseas marriage recognised in Australia was the key fact on review.

What if the application has already been lodged?

If a spouse application has already been lodged and doubts about the marriage have emerged, the position should be assessed immediately. It may be possible to show that the couple were de facto partners when the application was made, or that the marriage was in fact valid under the local law and was an overseas marriage recognised in Australia all along. Our articles on hiring an immigration lawyer after lodging your own visa application and on getting a second opinion from an immigration lawyer explain how a lawyer can step into an existing application. A lawyer is appointed using Form 956.

Applying onshore when the overseas marriage is not recognised

An onshore applicant who cannot rely on an overseas marriage recognised in Australia must also think about their visa status and conditions before choosing a pathway, because a change of strategy can change the timing of lodgement.

• An applicant whose visa carries condition 8503 generally cannot lodge an onshore Subclass 820 application unless the condition is waived. Our article on whether you can apply for a Subclass 820 visa with a no further stay condition explains the rule, and our guide on moving from a tourist visa to a partner visa in Australia covers visitors.
• An applicant who does not hold a substantive visa when applying must generally meet or have waived the Schedule 3 criteria. Our Schedule 3 waiver page and our article on Schedule 3 criteria when you are unlawful explain how those criteria work. Our article on the Schedule 3 partner visa waiver explains the compelling reasons test.
• An applicant who holds a substantive visa will usually receive a Bridging Visa A on lodgement. Our guide to the Bridging Visa A explains its conditions, and our overview of bridging visas in Australia explains the other bridging visas.

Waiting to marry again, or waiting for the de facto relationship to reach 12 months, can push an applicant past the expiry of their current visa. That can change the case completely. The timing should be mapped before a decision is made.

Evidence of an overseas marriage recognised in Australia

The evidence that proves an overseas marriage is recognised in Australia is the marriage certificate, an accurate English translation, proof that the marriage was registered where the local law requires it, and proof that any earlier marriage of either party had ended before the new marriage took place.

A strong evidence set for an overseas marriage recognised in Australia usually includes:

• The marriage certificate issued by the civil authority, not only a religious or ceremonial certificate.
• A civil registration extract where the country issues one, showing the date of registration.
• Certified English translations of every document, including stamps and annotations.
• Evidence that earlier marriages ended, such as a divorce order or certificate, a foreign divorce decree, or a death certificate.
• Identity documents that match the names and dates on the certificate, with an explanation for any difference.
• Evidence of the local law where validity is unclear, such as an official explanation of the registration requirement or an opinion on the foreign law.
• Evidence of domicile where an underage marriage is involved.

The marriage evidence proves only the legal element. The genuine and continuing relationship must be proved separately, through evidence across the four aspects. Our guides to the partner visa relationship statement and to the Subclass 820 visa requirements and documents explain that wider evidence. There is one relationship statement, and it is the couple's own account.

Can a partner visa be refused because the overseas marriage is not recognised?

Yes. A partner visa that relies on a spouse relationship can be refused if the marriage is not valid for the purposes of the Migration Act, unless the relationship also meets the de facto definition and the other criteria at the relevant time.

Where the Department is not satisfied that the couple have an overseas marriage recognised in Australia, the refusal letter will usually say so and explain why. Refusals on this ground often combine with other findings, such as a short period of cohabitation, inconsistent marriage dates or an earlier undeclared marriage. Our articles on why partner visas get refused and on why Subclass 820 partner visas are refused explain the common grounds.

Review at the Administrative Review Tribunal

A refused partner visa may be reviewable at the Administrative Review Tribunal. The time limit for lodging a review application is short and strictly applied, so the refusal letter should be read the day it arrives. The Tribunal reviews the decision afresh and can consider evidence available at the time of its own decision. That is why many of the cases discussed in this guide were remitted after the parties had validly married or registered their marriage by the time of the review.

Our partner visa refusals page, our guide to partner visa appeal options and our article on what to expect at an ART review explain the process. Where a Tribunal decision involves a legal error, our judicial review page explains the court pathway. Our visa refusals page and our guide to the role of a visa appeal lawyer set out the wider options.

Overseas marriage recognised in Australia: common situations

The overseas marriage recognised in Australia question tends to arise in the same handful of situations:

• Married in the applicant's home country with full civil registration. Usually an overseas marriage recognised in Australia. The focus moves to the genuineness of the relationship.
• Religious or traditional ceremony only, in a country that requires civil registration. Usually not recognised until the marriage is registered or the couple marry again.
• Marriage soon after a divorce. Recognition depends on whether the divorce had taken effect and is recognised in Australia.
• Second marriage while a first marriage continued. Not recognised, even after the first marriage ends. The de facto route or a fresh marriage may be available.
• Proxy or remote marriage. Recognised only if the local law allowed it, it was performed under that law, and both parties gave real consent.
• Marriage where one party was under 18. Depends on age and domicile at the time of the marriage.

Each situation turns on the documents and on the foreign law. None should be assumed. A couple who are unsure whether they have an overseas marriage recognised in Australia should resolve that question before lodgement, not after a refusal.

Partner visa advice for overseas marriages across Australia

My Migration Lawyers advises couples across Australia by video, so the question of whether a couple have an overseas marriage recognised in Australia can be assessed wherever the couple lives. Couples often find us through our pages for partner visa lawyers in Sydney, partner visa lawyers in Melbourne, partner visa lawyers in Brisbane, partner visa lawyers in Perth and partner visa lawyers in Adelaide. Couples in other cities can read about partner visa lawyers in Canberra, partner visa lawyers in Hobart, partner visa lawyers on the Gold Coast and partner visa lawyers in Parramatta. Where a matter involves more than a partner visa, our pages for immigration lawyers in Sydney and immigration lawyers in Melbourne explain the wider services. Couples comparing firms can read our guide to choosing the best partner visa lawyer in Australia. Our guide to when you need an immigration lawyer for a partner visa explains what legal assistance covers.

How My Migration Lawyers helps when an overseas marriage may not be recognised in Australia

My Migration Lawyers acts in many partner visa matters where the validity of a foreign marriage is in question, including religious-only and customary ceremonies, proxy marriages, marriages that followed a foreign divorce, and marriages with inconsistent registration records. In each of these matters the first question is whether the couple have an overseas marriage recognised in Australia. These are complex cases, and the firm is capable of handling them because the work starts with the law of the marriage before any form is completed.

When a couple needs to know whether they have an overseas marriage recognised in Australia, My Migration Lawyers:

• reviews the marriage certificate, registration records and translations to identify exactly when, and under what law, the marriage became valid;
• checks each section 88D exception, including any earlier marriage, divorce, age and domicile issue, and real consent;
• confirms whether any earlier divorce is recognised in Australia under section 104 of the Family Law Act;
• compares every earlier visa application and Form 80 for consistency with the marriage details, to identify any PIC 4020 risk;
• decides whether the application should proceed as a spouse application, as a de facto application, after a fresh valid marriage, or through the Subclass 300 pathway, and explains the reasons;
• maps the timing against the applicant's current visa, any condition 8503 and any Schedule 3 issue; and
• where a refusal has already occurred and review is still available, prepares the evidence and submissions for the Tribunal.

The couple's relationship statement is always their own account. My Migration Lawyers reviews it with the couple, they correct it, and the firm presents it in the form the law requires. The lawyer decides how the legal argument about validity is put and prepares the submissions.

The firm is led by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and our partner visa lawyers service. If you need to confirm that you have an overseas marriage recognised in Australia before you apply, or after a refusal, book a consultation or call 1300 040 300.