The Fiance Visa
Engaged? Congratulations! I’m sure you cannot wait to have your partner here with you in Australia. The Prospective Marriage 300 visa will help you do just that. The Prospective Marriage 300 visa is a temporary 9 month visa for the applicant with plans to get married. Once the couple has married, they will then be able to apply for the onshore Partner 820 visa.
Why bother with the Prospective Marriage 300 visa at all? It could be that your wedding takes some time to plan, or it could help to jumpstart the visa process – if you marry before the grant of the 300 visa, you can request for the application to be converted to a offshore Partner (Migrant) 309 visa and would be ahead in the queue.
The applicant and the sponsor must be at least 18 years of age. The sponsor must be an Australian permanent resident, citizen or eligible New Zealand citizen.
The applicant must meet health and character requirements and sponsor must meet character requirements – if the sponsor has an unresolved charge or conviction for a registrable offence, the visa cannot be granted. The Department of Immigration and Border Protection (DIBP) may on discretion request for the sponsor to obtain a police check from the Australian Federal Police (AFP) and from any country in which the sponsor have lived for a total of at least 12 months.
There are three situations in which an Australian permanent resident, citizen or eligible New Zealand citizen is not eligible as a sponsor:
- If the person was granted a Partner visa or Prospective Marriage 300 visa in the last five years
- If person has sponsored two other people on a Partner visa or Prospective Marriage 300 visa
- If the person has sponsored another person on a Partner visa or Prospective Marriage 300 visa in the last five years
If you are in one of these situations, you may still be able to be a sponsor if there are compelling circumstances; factoring the nature of the hardship/detriment that would be suffered by the sponsor if the sponsorship were not approved and the extent and importance of the ties the sponsor has to Australia.
The couple must have have met in person after both are at the age of 18, and must know each other personally.
Should the DIBP have doubts as to the genuinity of the relationship, they may interview both the applicant and the sponsor.
In some cases marriages are arranged before the couple has reached a marriageable age. This is okay so long as there is real consent from the applicant and sponsor after they have turned the age of 18. Real consent is assessed through examining the evidence of the relationship to see if there are any indications that a party might be unwilling to marry. For example, is there is a lack of evidence from communications that the relationship has developed to a point where the decision to marry is mutual.
The evidence required for the Prospective Marriage 300 visa are statutory declarations (Form 888), proof that the applicant and sponsor have met face to face, proof the couple they will marry within the 9 months that the visa is valid, proof that the couple genuinely intend to live together as spouses after marriage and written statements on the history of the relationship.
Intention to marry
The couple will need to show evidence of the arrangements that have been made for their marriage ceremony. This needs to be in the form of a letter from the authorised marriage celebrant who will be conducting the ceremony. The letter must:
- Be signed by the marriage celebrant
- Be dated
- Be on an letterhead
- Provide the date or date range of the marriage ceremony
- Provide the venue
- Confirmation that a Notice of Intention to Marry (NOIM) has been lodged with the celebrant
Notice of Intention to Marry (NOIM)
It is Australian law that a person who wishes to marry in Australia must lodge a NOIM with the celebrant who will be conducting the marriage ceremony. The NOIM must be lodged no less than 1 month and no more than 18 months before the proposed date of the ceremony. The NOIM is valid for 18 months.
Persons who can witness NOIMs outside Australia include:
- Australian diplomatic officers
- Australian consular officers
- Notaries public
- Employees of the Commonwealth authorised under paragraph 3(c) of the Consular Fees Act 1955
- Employees of the Australian Trade Commission authorised under paragraph 3(c) of the Consular Fees Act 1955
There are several officers in each Australian Embassy, High Commission or Consulate who can witness such documents under the Consular Fees Act 1955.
Persons who can witness NOIMS in Australia are:
- authorised celebrants
- Commissioners for Declarations under the Statutory Declarations Act 1959
- Justices of the peace
- Legally qualified medical practitioners or
- Members of the Australian Federal Police or state/territory police forces
Evidence of the NOIM need not be provided but the letter from the marriage celebrant should acknowledge that the NOIM has been lodged.
Waiver of marriage celebrant’s letter
There may be circumstances under which the requirement for the letter may be waived. One of these is if the evidence provided for the intention to marry is very strong. This may be in the form of plans for the wedding, engagement with a wedding planner and so forth.
The other would be if it is not possible for the couple to obtain a NOIM, for example if the marriage celebrant will not accept a NOIM without first interviewing the couple and the couple are not in Australia.
It is an important requirement that the marriage occurs within the 9 month validity of the visa. The couple, therefore, needs to take into account the visa processing time in their plan. Because the processing time may vary, the couple may pick a date range instead of a date, that is likely to fall within the validity of the visa should it be granted. The range may be in the 9 months after 12 months (processing time) from the lodgement of the application. Failing to provide evidence of the marriage date being whilst the visa is valid can adversely affect the application.
Intention to live as spouses after marriage
This is evidenced through the 4 main aspects of a relationship:
- Financial aspects of the relationship
- Nature of the household
- Social aspects of the relationship
- Nature of the commitment
It is understandable that evidence supporting all the above aspects may be available for a couple with intentions to marry but as much evidence as possible to support the relationship should be provided. Evidence to this may include communications or plans made for living together once the applicant is in Australia and the couple has married.
No impediment to marriage
Both parties must be free to marry at the time of decision. The intended marriage must be recognised under Australian law as valid. This discludes same sex marriages for the time being.
The Prospective Marriage 300 visa cannot be extended and a subsequent Prospective Marriage 300 visa cannot be applied for. As such, the couple will need to get married before the 300 visa ceases or will have to apply for a partner visa after they have gotten married. The onshore Partner 820 visa should be applied for after marriage and before the visa ceases.
Unsure about how to provide appropriate evidence for the relationship or intention to marry? Speak to an experienced migration agent. With the processing time being quite lengthy, it can be costly to not have it done right.