Is a Same-Sex Marriage Recognised for a Spouse Visa?

Can a same-sex married couple apply for a spouse visa?

A same-sex married couple can apply for a spouse visa on the same basis as any other married couple. The applicant must show a valid marriage and a genuine and continuing relationship under section 5F of the Migration Act 1958, and the sponsor must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The visa subclasses, the application charge and the evidence requirements are the same. Our page on the LGBTI partner visa explains the issues that often arise for same-sex couples.

Is a same-sex marriage from overseas recognised in Australia?

A same-sex marriage from overseas is recognised in Australia if it was valid under the law of the country where it took place and no other ground for non-recognition applies. Overseas same-sex marriages performed before 9 December 2017 are also recognised from that date. The couple should provide the official marriage certificate, with an English translation where needed. Our article on an unrecognised overseas marriage explains other reasons a foreign marriage may not be accepted.

What if the applicant's home country does not recognise same-sex marriage?

An applicant whose home country does not recognise same-sex marriage can still rely on a same-sex marriage performed in Australia or in another country where it is lawful. Recognition in Australia does not depend on the applicant's home country. Couples in this position may have limited public evidence of the relationship, and that should be explained rather than hidden. Our article on partner visas for secret relationships explains how private relationships are evidenced.

How do same-sex couples show social evidence if they cannot be open?

Same-sex couples who cannot be open about their relationship show social evidence through the people who do know, such as close friends, and by explaining why the relationship is not public. The Department assesses the social aspect of the relationship in context, and a safety reason for privacy is relevant. Our article on the partner visa four pillars of evidence explains the social aspect, and our article on Form 888 statements explains who can provide supporting statements.

Should a same-sex couple apply as spouses or as de facto partners?

A same-sex couple should apply as spouses if they are validly married, and as de facto partners if they are not married but meet the de facto definition. The de facto pathway generally requires 12 months of de facto relationship before lodgement, unless the relationship is registered in an Australian state or territory or another exception applies. Our article on de facto partner visas explains these rules. A married couple does not need to meet the 12-month requirement, which can make the spouse pathway faster to lodge where the marriage is recognised.

How does My Migration Lawyers act for same-sex married couples?

My Migration Lawyers acts for same-sex married couples by confirming the marriage is recognised, then preparing evidence that reflects how the couple actually lives, including where safety has kept the relationship private in one partner's home country. The firm treats those circumstances with discretion and explains them to the Department clearly. Couples can speak with our partner visa lawyers about whether to lodge as spouses or de facto partners.