Australian Same Sex Partner Visa

In Australia, the path towards legal recognition of same-sex relationships has been gradual, reflecting shifts in social attitudes and legislative change.

The significant strides began with the decriminalization of homosexual acts between consenting adults, which set the stage for further advances in LGBTQ+ rights.

It was not until the early 2000s, however, that same-sex relationships began to gain formal legal recognition.

The year 2008 marked a milestone when the Australian government introduced the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008.

This act amended 84 federal laws, eliminating discrimination against same-sex couples and their children across a range of legal areas.

Notably, it allowed same-sex couples the same rights as de facto partners in matters such as social security, taxation, and health care.

The campaign for same-sex marriage rights gained momentum over the following years, leading to a series of legal challenges and public debates.

Advocacy groups, as well as political allies, called for equality, culminating in a nation-wide postal survey in 2017 to gauge public support for same-sex marriage.

The survey, which was non-binding, revealed that a majority of Australians were in favour of legalizing same-sex marriage.

In response to the survey results, the Australian parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017.

This landmark legislation came into effect on December 9, 2017, amending the Marriage Act 1961 to redefine marriage as ‘a union of 2 people to the exclusion of all others, voluntarily entered into for life’.

This change removed the previous prohibition on same-sex marriage, thus granting legal recognition to such unions on equal footing with opposite-sex marriages.

The 2017 act had immediate implications for family law and immigration.

It paved the way for same-sex couples to access the full suite of rights and responsibilities associated with marriage, including those related to partner visa applications.

The act was particularly significant for bi-national same-sex couples, for whom marriage equality meant a pathway to family reunification and the legal recognition of their relationships for immigration purposes.

Overview of Partner Visa Options for Same-Sex Couples

Following the historic shift toward inclusivity with the legal recognition of same-sex relationships in Australia, an array of visa options became available to same-sex couples, mirroring those accessible to heterosexual couples.

These visas facilitate the reunion and residence of partners from different countries and are paramount for same-sex couples seeking to build a life together in Australia.

Here, we will explore the key partner visa options and their nuances as they apply to same-sex relationships.

Partner Visa (Subclasses 820 and 801)

The Partner Visa consists of two stages: the temporary Subclass 820 and the permanent Subclass 801.

This visa is intended for individuals in a relationship with an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.

Subclass 820 is a temporary visa allowing the applicant to live in Australia while the permanent Partner visa (Subclass 801) is processed or until it is decided that they are not eligible for the permanent visa.

During this time, the applicant has full work rights and access to government-funded services, such as Medicare.

Eligibility Criteria for Subclass 820:

• Be in a genuine relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen.
• Be married or in a de facto relationship, which includes same-sex relationships.
• Have been in the relationship for at least 12 months unless there are compelling and compassionate circumstances.
• Have your sponsor approved.

Subclass 801 is the permanent stage of the partner visa, generally assessed two years after the initial application for the Subclass 820 visa. It grants permanent residency and is the final step to cementing the relationship’s legal recognition in Australia.

Eligibility Criteria for Subclass 801:

• Hold a Subclass 820 visa.
• Still be in the relationship with the original sponsor, which remains genuine and continuing.
• Meet health and character requirements.

Other Partner Visa Categories

Additionally, same-sex couples may also be eligible for other visa categories, which include:

• Partner (Provisional and Migrant) Visa (Subclasses 309 and 100): This is similar to the Subclasses 820 and 801 visas but for applicants outside Australia.
• New Zealand Citizen Family Relationship (Temporary) Visa (Subclass 461): Allows non-New Zealand family members of New Zealand citizens to live in Australia temporarily.

Subclass 309 is the provisional part that allows the applicant to live in Australia while awaiting the processing of the permanent visa, Subclass 100. It usually has similar eligibility requirements and steps as the Subclass 820 visa.

Subclass 461 is specifically for the non-New Zealand family members of New Zealand citizens who meet specific eligibility criteria, allowing them to live and work in Australia for up to five years.

In every case, applicants must demonstrate the genuine and ongoing nature of their relationship, with the relevant authorities closely scrutinizing the documentation provided to minimize fraudulent claims.

Given the sensitivity and personal nature of same-sex relationships and the potential for discrimination or persecution, the Department of Home Affairs handles such cases with due discretion.

It recognizes the need to protect the privacy of applicants and ensure their safety throughout the application process.

In instances where the recognition of an overseas marriage may not be straightforward, it is advisable for same-sex couples to seek comprehensive advice before lodging a partner visa application.

This can prevent unnecessary delays and ensure that applicants fully understand their rights and the requirements for successful recognition of their marriage in Australia.

By recognizing overseas same-sex marriages and allowing them to serve as the basis for partner visa applications, Australia has taken definitive steps to foster equality and reflect its commitment to human rights.

Nonetheless, the process remains detailed and exacting, requiring couples to thoroughly prepare and substantiate their applications to successfully navigate the intricacies of Australian immigration law.

Documentation and Evidence Requirements

The Australian Department of Home Affairs sets out specific requirements for documents and evidence needed in the partner visa application process.

These requirements serve to prove the legitimacy of the relationship, financial cohabitation, and social recognition.

Here is a detailed rundown of what applicants need to gather to compile a persuasive application package.

Proof of Relationship

To establish the authenticity of the relationship, same-sex couples must provide comprehensive evidence to the Department of Home Affairs.

Proof of a committed and ongoing relationship can be demonstrated through:

• Joint Bank Account Statements: Showcasing financial commitments made together over time.
• Joint Ownership or Lease Documents: Providing evidence of joint ownership of property or co-signing a lease shows shared responsibility and mutual long-term planning.
• Utility Bills: These should ideally be in both names, establishing that you live together and share in everyday expenses.
• Correspondence: Letters or emails addressed to both partners at the same address help establish cohabitation.

Financial cohabitation

Financial cohabitation refers to the extent to which the couple shares financial responsibilities and resources.

The following documents are often used as evidence:

• Shared Financial Commitments: Documents such as loan agreements, insurance policies, or evidence of joint purchases (furniture, vehicles, etc.) are useful.
• Joint Savings and Investments: Savings accounts, investments, or shared retirement plans can corroborate financial interdependence.
• Beneficiary Details: Each partner naming the other as the beneficiary in their will, insurance policies, or superannuation accounts provides strong evidence of a genuine and continuing relationship.

Social Recognition

A same-sex partnership should be socially acknowledged by friends, family, and the community.

Evidence for this may include:

• Statutory Declarations: Form 888, completed by friends or family, attesting to the relationship’s genuine and continuing nature.
• Social media: Posts, photos, or other digital records indicating the relationship is recognized socially.
• Joint Travel Documents: Itineraries, tickets, or travel bookings indicating holidays or trips taken together.
• Invitation Cards: To events that you have attended together as a couple, such as weddings or parties.

Personal Statements

Both partners are usually required to write personal statements, often referred to as relationship statements, which provide a narrative of the relationship, including:

• The Development of the Relationship: Explaining how and when you met, key milestones in the relationship, and future plans.
• The Nature of the Commitment: Describing the emotional, physical, and financial aspects of the relationship and your plans for the future.

Additional Evidentiary Documents

Additional documents, while not mandatory, can bolster a partner visa application:

• Photos: Showing the couple together at various stages of the relationship.
• Letters or Cards: Exchanged between the partners or from friends and family that reference the relationship.
• Shared Responsibilities: Evidence of parenting arrangements, caring for pets, or joint decision-making processes.

Legal and Health Documents

• Marriage Certificate: If the relationship is a marriage, the official marriage certificate from the place the marriage took place is required.
• Medical Examinations: Health checks are often mandated as part of the visa application process.
• Police Checks: These are necessary for each country you’ve lived in for 12 months or more during the past ten years.

Given the detailed and documentary-heavy nature of a partner visa application, same-sex couples may consider enlisting the help of a migration agent in Perth or your city.

These experts can offer valuable guidance on the compilation and presentation of documentation to enhance the persuasiveness of the visa application.