Are you planning to lodge a partner visa? Even if you are not married you may still apply for a partner visa as a de-facto relationship. If you do so however, you will need to demonstrate that the relationship has existed for at least 12 months, unless you have a relationship certificate. Applying for a partner application as a married couple has no such requirement. But what does it take to prove that your marriage is valid?
Is the marriage valid for visa purposes?
You may think that this seems like an odd question to consider but as laws and conventions vary between countries, and relationships come in many shapes and forms, this is an important one. The Department of Home Affairs (DOHA) requires that the marriage is valid under Australian laws. We will continue to discuss
- Real consent
- Foreign marriages
- Arranged marriages
- Proxy marriages
- Polygamous marriages (which include overlapping relationships)
- Marriages between parties that have a prohibited degree of relationship (some degree of familial ties)
- Underage marriages
- Transexuals and intersexes
Although largely, Australia respects the laws and practices of other countries, there are situations that may arise that regardless of the laws of the country in which the marriage has taken place in, Australia will not recognise the marriage.
Across the board, it is important for any form of marriage to have real consent to be considered to be valid. Without real consent, the marriage is considered void. Real consent does not exist if:
- Consent was obtained through duress or fraud
- One party is mistaken as to the identity of the other party or as to the nature of the ceremony performed
- One party is mentally incapable of understanding the nature and effect of the marriage ceremony
Marriages solemnised other than under the Australian Marriage Act are marriages that are solemnised under the laws of a foreign government. This can occur even if the marriage has taken place within Australia. These types of marriages largely occur outside of Australia however.
It is important that the marriage is recognised under the under of the country that it was solemnised in. The DOHA will consider the laws of the country in which the marriage was solemnised in in determining if the marriage was valid
Arranged marriages may be considered to be valid unless one of the parties has not given real consent. In such circumstances however, the DOHA may take extra care look at such marriages and for any evidence that the arrangements for the marriages only proceeded due to familial duress of cultural pressure, or that one party would prefer that the marriage did not proceed. This would represent a lack of real consent.
If you are applying for the Prospective Marriage 300 visa, it is a requirement that arranged marriages, especially those that were arrange before a party turned 18 years of age, it is necessary that the parties met in person since they turned 18 years of age. The is because the DOHA recognises that there are situations where arrangements for the marriage are made before either party has reached marriageable age. Bear in mind that marriages must occur when both parties are at least 18 years of age to be considered valid when making an application.
It is important to demonstrate that the couple:
- Genuinely intends to live together as spouses
- Real consent was given by both parties
Certain situations may arise where a marriage under the age of 18 may be accepted and this is detailed under “underage marriages” later in the article.
Whilst in most cases, consent requires both parties to be present, some country allow marriage by proxy. The DOHA will take into account the laws of the country in which the marriage was solemnised . So long as the marriage was solemnised in accordance with those laws and both parties have given real consent to the marriage, the marriage will be considered as valid.
It is important that it also demonstrated that the couple:
- Has a mutual commitment to a shared life as husband and wife and the relationship is exclusive
- The relationship is genuine and continuing
- The couple lives together, or do not lie separately on a permanent basis.
Polygamous marriages include marriages that include more than two parties as well as marriages that include another relationship before the prior marriage has ended. Such situations will not fulfil the requirements as there is no mutual exclusivity in the relationship.
If a marriage has taken place before the previous marriage has ended, whether through separation, divorce or death, the current marriage cannot be taken to be a valid marriage in the eyes of the DOHA. The marriage may only be recognised if a permanent seperation or separation by death has occured before the ongoing or current relationships. The parties in the ongoing, or ‘survival’ marriage may satisfy the de facto requirements, but the 12 month period can only begin after the conclusion of the previous marriage
Prohibited degree of relationship
Marriages between a person and an ancestor or descendent of that person, that is a parent, child, grandparent, grandchild or sibling are considered under this category. This is not considered as a valid marriage for visa purposes. Marriages between cousins, nephews, aunts, nieces and uncles are however not prohibited.
In Australia the marriageable age is 18 years of age. Again, in recognising the laws and customs or other countries, there are certain circumstances under which the DOHA will accept such marriages. The marriage will still be recognised if:
- Both parties were at least 16 years of age at the time of marriage
- The marriage is valid in the country in which it was solemnised
- Neither party was domiciled in Australia at the time of marriage
At least one party needs to be 16 years of age for the marriage to be considered as valid if both parties are domiciled outside of Australia
As one party is required to be an Australian citizen, permanent resident or eligible New Zealand citizen to sponsor their partner, that person can only have their marriage recognised for an underage marriage if they have been domiciled outside of Australia. In other words, they intend to live in another country indefinitely. This is evidenced through their having assumed long term residence outside Australia, in that country.
Transexuals and intersexes
For the purposes of visa application, the DOHA will recognise the sex of the partners at the time of marraige and not that biological (chromosomal) sex. This means that a marriage:
- Between a male and a post operative male to female person is recognised and vice versa is recognised
- Between a male and a pre operative male to female person (sill male) is not recognised, and vice versa
- Between a male and a pre operative female to male (still female) is recognised, and vice versa
Do you have a complicated relationship and are looking to sponsor a partner? Perhaps you are unsure if the sponsorship limitation applies to you, if your marriage is recognised or if you have met the relationships requirements. Book a consultation to speak one of our highly experienced migration specialists. Call +61 2 8054 2537, 0434 890 199 or book online.