Prospective Marriage 300 Visa. Can You Get Married Before It’s Granted?
The Prospective Marriage Visa has been around for a long time and has been used successfully by many happy couples to get married in Australia. It is designed for couples who have met at least once in person, fallen in love and plan to be married in Australia. This marriage was originally meant to happen within 9 months of the visa application so you still require the Australian Notice Of Intended Marriage (NOIM) form to be signed.
This requirement to have physically met is important as DOHA policy states;
Written correspondence or contact by phone, fax or the internet does not constitute having ‘met in person’. This interpretation of ‘must have met’ is consistent with that for the pre-1 July 2013 requirement (‘must have met and be known to each other’), the interpretation of which was upheld at the Full Federal Court, which determined that, for parties to a proposed marriage to have ‘met’, the parties must have come into each other’s company or physical presence (met in person) rather than by any other means. (Minister for Immigration and Citizenship v Yucesan  FCAFC 110.)
However with the incredibly slow (purposefully) processing times of visas these days it is taking well over 12 months for the local overseas posts to grant these visas. This means the original NOIM form has expired and a new one will need to be arranged after you get a case officer. In many cases couples end up getting married before the 300 visa begins to get processed.
Whilst it is true what DOHA says on their web site that the 300 visa cannot be granted once you get married, this does not mean you loose your nearly 8K application fee. What for some reason they don’t tell you on their web site is that once you get married your unprocessed 300 application gets transferred to the 309 visa. You need to tell DOHA that you have married and then request the application be processed as a 309 application. Even if you fail to ask them they should transfer themselves anyway.
You will then wait for a case officer to process your 309 application instead. In our experience your que of waiting for the 309 visa does not start all over again, the date of your waiting period is accepted as the date you lodged the 300 visa.
Can I lodge the 300 visa then get married later?
As mentioned above yes once you get married your 300 application turns into a 309 application simply by informing the post where is was lodged that a marriage has taken place.
Now the 300 visa requires an intention to get married in Australia but that does not mean you cannot get married overseas before the visa is granted. In fact it is possible to have two plans, to get married in Australia by a certain date and if the visa is not granted by then, then you will get married overseas.
Let’s look at Jesse’s example.
Jesse plans to get married to his partner in Australia in May of next year. The NOIM form has been supplied and signed and the visa application has been lodged in November this year. The couple however get married in overseas in January but still plan to do another marriage in Australia as they originally planned in May. Jesse notifies the DOHA that that they have been married in January and provides the marriage certificate. The department then informs them their application has not been converted to a 309 application.
The DOHA has a policy regarding this conversion to the 309 visa;
If, after aTO-300 application is made but before it is decided, the couple change their plans and marry outside Australia, TO-300 time of decision criteria cannot be satisfied. However, under regulation 2.08E (which covers most situations), once the couple has notified the department of their marriage (as would be required of them by s104 of the Act), and provided the marriage is valid for visa purposes (see PAM3: Act - Act defined terms - s5F - Spouse), the TO-300 applicant is taken to have also applied for a UF-309/BC-100 Partner visa. In these cases, no additional first instalment VAC is payable; the amount paid for the first instalment VAC for the TO-300 visa is taken to be payment of the first instalment VAC for the BC-100 visa - see regulation 2.08E(3). The applicant should be advised to withdraw, in writing, the TO-300 application or the visa will be refused (note: the applicant must still be informed of their review rights in this situation). Refusal of the TO-300 visa does not affect continued processing of the UF-309/BC-100 application.
There is nothing wrong with getting married earlier than the NOIM form indicated or later. Jesse may or may not decide to go through with the Australian marriage later but in reality the 300 visa had no chance of being granted before May of next year by the overseas post nearest to his partner. Had there been a chance Jesse may have decided not to get married in January but the issue is that he was free to make that choice without fear of loosing his large application fee.
Now many people use the 300 visa lodgement first then transfer to the 309 visa as a method of getting into the 309 que earlier. This strategy has worked well in the past but there is no guarantee to will work on all occasions. In some overseas posts the 300 visa is actually processed within the 9 months anyway, but not many.
The confusing part of the visa is that there is a requirement under policy to intend to get married in Australia. it states;
1.2 If the couple intend to marry before travelling to Australia Persons who intend to marry their prospective spouse outside Australia (that is, before travelling to Australia to settle permanently) should apply outside Australia for a UF-309/BC-100 Partner visa - see PAM3: Sch2Visa309. Note: The applicant and prospective spouse must still meet the requirement that their marriage be recognised under Australia law - see PAM3: Act - Act defined terms - s5F - Spouse.
On the departments web site on the 300 Visa you will see it makes no mention of a NOIM or having to get married in Australia but the policy states;
1.1 The TO-300 visa pathway This visa is for persons seeking entry to Australia:
- to marry, after their first entry to Australia, the Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse (either party is also called ‘fiancé(e)’) and
- with a view to remaining permanently.A TO-300 visa allows the holder to travel to, enter and remain in Australia for 9 months. Policy intends that, after marrying their prospective spouse (and while the TO-300 visa is still in effect), the TO-300 visa holder apply for a UK-820/BS-801 Partner visa.
So they want you to come to Australia and get married but in reality it does not really matter where you end up getting married. However if you get married before the 300 visa is granted it turns into a 309 application. You can read in detail about the 300 visa here.
Find it a little confusing and need assistance? We are here to help. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists. We do not close over the Xmas and New Year holidays for the DOHA does not stop except for public holidays so we don’t either!