This article is about Spouse, Prospective Marriage, De Facto Partner Visa Australian Migration.

The current processing timeframe is currently 23 to 32 months for 100 Partner Visa. The processing timeframe for other Spouse, Prospective Marriage, De Facto Partner Visa noted below.

We have also received confirmation from the Department that undocumented or poorly documented applications lodged by RMAs, eg: applications that only meet the basic Schedule 1 requirements for lodging a valid application, may be refused without notice and without requests for further information.

We have noticed that we are receiving Requests for Further Information (RFIs) from overseas posts of the Department, unrelated to the applicants’ home countries.  Some colleagues have reported these RFIs are arriving very soon after lodgement of these applications. We note that the Department has been implementing global processing for partner visas in an attempt to reduce the current extensive processing times.

We are also been informed that attempts are being made to fast track applications with front loaded medicals and character checks.  We will consider clients circumstances and whether front loaded applications are suitable. Any client who want the applications potentially (no guarantee) to be processed quickly should contact us via email if medicals and character checks are not done or are expired.

The Director of Onshore Partner Migration has written to inform about current changes to onshore Partner processing:

• processing no longer by month of lodgement
• priority to be given to low-risk, fully front-end loaded applications that immediately satisfy Partner criteria

⁴ Processing time for subclass 801 Partner (permanent) visa and 100 Partner (permanent) visa is from date of eligibility (2 years after the 820/801 or 309/100 application is lodged) to finalisation.

Do you know how the Department assess the spousal relationship?
Assessing spouse relationships

Section 5F of the Act and regulation 1.15A(1A) operate as follows:

• s5F(2)(a) requires the relationship to be a de jure marital relationship recognised under migration law
• s5F(2)(b) requires the relationship to be one of mutual commitment to a shared life as husband and wife to the exclusion of all others
• s5F(2)(c) requires the (marital) relationship to be genuine and continuing (on-going)
• s5F(2)(d) requires the parties not to be living separately and apart on a permanent basis.

Under law (regulation 1.15A(1) and under policy (for regulation 1.15A(3)), decision makers must have regard to regulation 1.15A(2) when assessing s5F(2) requirements and consider all the circumstances of the relationship, particularly (but not limited to) the factors listed in regulation 1.15A(2).

Although s5F(2) requirements are inextricably linked, decision makers must assess each type of legislative requirement separately and take care not to blur the distinction between each requirement.

In accordance with regulation 1.15(A)(2), in all cases, decision makers are to consider collectively the four factors specified in regulation 1.15A(3)(a)-(d), that is, the:

• financial aspects of the relationship (Factor 1 – regulation 1.15A(3)(a))
• nature of the household (Factor 2 – regulation 1.15A(3)(b))
• social aspects of the relationship (Factor 3 – regulation 1.15A(3)(c))
• nature of the persons’ commitment to each other (Factor 4 – regulation 1.15A(3)(d))

By considering all four factors, it will ensure consistency and fairness across all visa classes, including those that are not in the partner category of visas.

By doing this, decision makers will be able to satisfy the s5F(2) requirement that the:

• relationship is genuine and/or continuing
• parties have a mutual commitment to a shared life to the exclusion of all others and
• partners are living together (or at least not living apart permanently).

The officer’s assessment must not be based by only comparing how many factors listed in regulation 1.15A(3) are satisfied against how many are not satisfied. Rather, it involves officers:

• considering each individual relationship against all factors listed in regulation 1.15A(3) and
• taking into account any other relevant information provided by the applicant (or information otherwise available to officers), assessing whether or not, on balance, the requirements of s5F(2) are met and that a spouse relationship exists.

Completing and applying will not satisfy these requirements. If there are any weaknesses in your case proper legal submissions must be provided with substantiating factors and highlighting case law when required.

You may be eligible for a partner visa if you are in a relationship with an Australian citizen, Permanent Resident, or eligible New Zealand citizen.

You must either be married or in have lived together in a de-facto relationship.

Visa Conditions and Duration

Once your initial partner application is granted, you will in most cases be issued with a Temporary Partner Visa. This will allow you to stay in Australia with have full work and travel rights, as well as access to Medicare.

After the two year period, the Department of Immigration will look to grant you a Permanent Partner Visa. At this stage, you will be asked for current evidence of your relationship.

In some circumstances, a waiver is available for the 2 year period before applying for permanent residence:

• if you have been in the relationship with your partner for three years or more at the time of application; or
• if you have been in the relationship for two years where there are dependent children of the relationship; or
• if your partner was granted a permanent visa under the humanitarian program or was granted a protection visa and was in the relationship with you before the visa was granted and this relationship was declared to the Department of Immigration at the time.

In some circumstances, you may be eligible for permanent residence even if the relationship has broken up before the end of the 2 year period. These circumstances include:

• If your partner has died during this period; or
• If you and your Australian partner have children under 18 years of age; or
• If you or your dependants have been subject to domestic violence during this period

Visa Criteria

In order to be eligible for a partner visa, you must meet the following criteria:

Genuine Relationship

You will need to show that you and your partner have a commitment to a shared life together, to the exclusion of all others. You and your partner must live together, or at least not live apart on a permanent basis.

The Department of Immigration will look at a number of aspects of your relationship, including:

• Cohabitation: Usually evidenced through showing correspondence addressed to both of you at the same address
• Financial Interdependence: For example, joint bank accounts, joint ownership of property, joint financial commitment such as leases, mortgages, insurance policies.
• Social aspects of the relationship: Joint travel, joint social activities, joint participation in cultural or sporting activities.

Defacto Relationship – 12 Months Cohabitation

A defacto relationship would require evidence that you have lived with your partner for the last 12 months. The Department of Immigration requires documentary evidence that you have lived together (for example, a joint lease or correspondence sent to you at the same address).

It is possible to get a waiver of the 12 month requirement in cases where you are unable to live together due to exceptional circumstances.

If you are married, you do not need to show 12 months of cohabitation, but will need to show that you are currently living together. If you have had your relationship registered in an Australian state or territory, you would be similarly exempt from the 12-month cohabitation requirement.

Health & Character

You will need to provide full health and police checks. If you do have a medical condition, a waiver of the usual health requirements is possible where the cost to the Australian community of treating the condition is not undue.

Please book an appointment for advice on obtaining a partner visa.

Visa Options

Australian residents, Australian permanent residents and NZ residents can sponsor close family members for permanent residence or migration to Australia.

Partner Visas

Australian citizens and permanent residents can sponsor partners for migration to Australia. To sponsor a partner, you must either be married, in a defacto relationship, have a registered relationship or be engaged.

Parent Visas

Parents with at least half their children living permanently in Australia may be eligible for a parent visa which gives them permanent residence in Australia. Parents over a certain age may be eligible to apply for an onshore ‘aged parent’ visa which allows them to remain in Australia on a bridging visa during processing.

General Skilled Migration

If you are a skilled worker, then if you have relatives in Australia, they may be able to sponsor you for a general skilled visa. This would make it easier for you to meet the relevant pass mark for the application.

Legislative authority

Together:

• s46(3) of the Act
• regulation 2.07(1) and
• regulation 2.10

provide for certain requirements relating to the making of an application to be set out in Schedule 1 of the Regulations.

Requirements for making a valid Class UF application are found in Schedule 1 item 1220A

For information about primary and secondary criteria see:- reg. 2.03 (Criteria applicable to classes of visas).

How an application is made

Please refer to s45, s46 and s51 of the Act,

Under current two-stage partner visa processing arrangements, applicants apply on the one combined application form for both a provisional visa 309 and a permanent visa 100.

Evidence you are in a genuine and continuing relationship

• If you or any applicants are in a de facto relationship, independent evidence that you have been living in a genuine and continuing relationship for at least 12 months.
• If you or any applicants have been divorced please provide certified copies of the divorce document(s).
• If your partner does not intend to migrate with you provide a statement explaining why and if they intend to join you in the future.
• If you or any applicant has been widowed, please provide a certified copy of the death certificate(s)

Partners and fiancés of Australian citizens, Australian permanent residents or eligible New Zealand citizens may apply to enter and/or remain permanently in Australia and include:

• people intending to get married (fiancés)
• married (de jure) partners
• de facto partners (including those in a same-sex relationship).

-If two years after you apply the spousal relationship is ongoing, a permanent visa may be granted.

Assessing spouse relationships

Section 5F of the Act and regulation 1.15A(1A) operate as follows:

• 5F(2)(a) requires the relationship to be a de jure marital relationship recognised under migration law
• 5F(2)(b) requires the relationship to be one of mutual commitment to a shared life as husband and wife to the exclusion of all others
• 5F(2)(c) requires the (marital) relationship to be genuine and continuing (on-going)
• 5F(2)(d) requires the parties not to be living separately and apart on a permanent basis.

Under law (regulation 1.15A(1) and under policy (for regulation 1.15A(3)), decision makers must have regard to regulation 1.15A(2) when assessing s5F(2) requirements and consider all the circumstances of the relationship, particularly (but not limited to) the factors listed in regulation 1.15A(2).

Although s5F(2) requirements are inextricably linked, decision makers must assess each type of legislative requirement separately and take care not to blur the distinction between each requirement.

Evidence that your relationship is genuine

When you apply for a Partner visa, you must provide evidence that supports your claims of a genuine and continuing relationship with your partner.

History of your relationship

You and your partner must each provide a statement regarding the history of your relationship, including:

• How, when and where you first met;
• How your relationship developed;
• When you decided to marry or commence a de facto partner relationship;
• Your domestic arrangements – how you support each other financially, physically and emotionally and when this level of commitment began;
• Any periods of separation – when and why the separation occurred, for how long and how you maintained your relationship during the period of separation; and
• Your future plans.

Please contact us reg: statutory declarations.

Evidence of your relationship

In accordance with regulation 1.15(A)(2), in all cases, decision makers are to consider collectively the four factors specified in regulation 1.15A(3)(a)-(d), that is, the:

1. financial aspects; (Factor 1 – regulation 1.15A(3)(a))
2. the nature of the household (Factor 2 – regulation 1.15A(3)(b))
3. social context of the relationship;(Factor 3 – regulation 1.15A(3)(c))
4. the nature of your commitment to each other. (Factor 4 – regulation 1.15A(3)(d))

All relationships are different, so you should provide as much evidence as you can that you believe will support your claims. The lists below are only a guide and are neither all inclusive nor exclusive. You may be asked to provide additional information during processing of your application.

By considering all four factors, it will ensure consistency and fairness across all visa classes, including those that are not in the partner category of visas.

By doing this, decision makers will be able to satisfy the s5F(2) requirement that the:

• relationship is genuine and/or continuing
• parties have a mutual commitment to a shared life to the exclusion of all others and
• partners are living together (or at least not living apart permanently).

The officer’s assessment must not be based by only comparing how many factors listed in regulation 1.15A(3) are satisfied against how many are not satisfied. Rather, it involves officers:

• considering each individual relationship against all factors listed in regulation 1.15A(3) and
• taking into account any other relevant information provided by the applicant (or information otherwise available to officers), assessing whether or not, on balance, the requirements of s5F(2) are met and that a spouse relationship exists.

1) Financial aspects

For regulation 1.15A(3)(a), the financial aspects of the relationship may be evidenced by:

• joint loan agreements for real estate, cars, major household appliances or any other agreements relating to finances or purchases (for example, property purchased by the parties as tenants in common)
• operation of joint bank accounts – evidence that the accounts have been operated with reasonable frequency and for a reasonable period of time would be given more weight than just opening such accounts
• pooling of financial resources, especially in relation to major financial commitments
• legally binding financial obligations that one party owes to the other, for example, as guarantor for a loan, existing power of attorney (these can be specified to cover various things, such as financial and medical)
• the basis of sharing day to day household expenses, for example, whether each party is responsible financially for their own expenses only and expenses are not pooled.
• Sharing finances.

2) The nature of the household

For regulation 1.15A(3)(b), the nature of the household may be evidenced by:

• your living arrangements;
• a statement outlining the basis on which responsibility for housework is distributed;
• joint ownership or joint rental of the residence in which you live;
• joint utilities accounts (electricity, gas, telephone);
• joint responsibility for bills for day-to-day living expenses;
• shared responsibility for housework;
• joint responsibility for children; or
• correspondence addressed to both you and your partner at the same address

3) Social context of the relationship

For regulation 1.15A(3)(c), social aspects may be evidenced by:

• evidence that you and your partner are generally accepted as a couple socially (for example, joint invitations, going out together, friends and acquaintances in common);

• the assessment of your friends and acquaintances about the nature of your relationship (see ‘Statutory declarations’ on page 25);

• evidence that you and your partner have declared your relationship to government bodies, commercial/public institutions or authorities;

• statements of parents, family members, relatives, friends and other interested parties. Statements in the form of statutory declarations should be encouraged on the basis that, as a legal document, they carry more weight. (Note: The Department provides a specific form for this purpose – see form 888 in the email)

• joint membership of organisations or groups;

• evidence of joint participation in sporting, cultural or social activities; or

• joint travel.

Note: Providing only statutory declarations from your and your partner’s parents, family members, relatives and other friends is not normally sufficient to evidence your relationship.

If appropriate we will provide a legal submission in line with case laws, for the Department to take into account to what extent, if any, the laws and/or traditions of the applicant’s home country may discourage the parties from openly admitting the existence of the relationship.

4) The nature of your commitment to each other

For regulation 1.15A(3)(d), officers should regard the nature of the partners commitment as requiring an assessment of the mutuality of their commitment to each other, having regard to (but not limited to) the four factors listed, namely:

• the duration of the relationship
• the length of time the parties have lived together
• the degree of companionship and emotional support that the parties draw from each other
• whether the parties see the relationship as for the long term.
• correspondence and itemised phone accounts to show that contact was maintained during any period of separation.

The nature (mutuality) of the relationship may be assessed having regard to, for example:

• the partners’ knowledge of each other’s personal circumstances (this could include background and family situation and could be established at interview) and/or
• evidence of intentions that the relationship be long term (for example, by the extent to which the partners have combined their affairs, and the extent to which they have provided for each other, such as being beneficiary to each other’s will and/or superannuation).

If parties who are (or until recently, were) living separately claim that their separation is (or was) not permanent, we will need to provide legal submissions in line with case law with reasons for the (temporary) separation – Act-defined terms – s5F – Spouse.

The length of the relationship

For regulation 1.15A(3)(d)(i), the duration of the relationship is simply one factor in assessing the mutuality of the parties’ commitment to each other. That mutuality of commitment is, in turn, simply one factor in assessing whether the relationship overall meets s5F(2) requirements to be in a spouse relationship.

There is no specific length of time prescribed in this factor. Although the length of time the parties have been married should be taken into account when assessing the mutuality of the relationship, all other factors under 1.15A(3)(d) must also be satisfied.

How to prove your relationship

Your relationship must be permanent and genuine, rather than you living together permanently. The sorts of things that could be used as evidence are:

• photographs of you and your partner together – in different locations, and different seasons
  (Please include a brief description of where and when the photos were taken and who is in them. You should give a few samples taken at different times covering the period since the grant of your temporary visa. Please do not provide a large number of photographs of the same event.)
• letters or emails – to and from each other and from other people referring to your partner or your relationship
• travel documents – showing you were in the same place at the same time
• legal documents showing joint finances and commitment – for example, lease, mortgage, property title, Will, power of attorney, joint bank account, utility bills in joint names
• envelopes with both names at the same address and dated postmarks
• at least four statutory declarations from other people who can confirm the nature of your relationship.

Australians getting married overseas

Marriage Overseas – General Requirements – Disclaimer Important

The Department of Foreign Affairs and Trade cannot advise on the specific requirements which may need to be met in order for a marriage to be legal in a particular country.  However, as a general guide only, the following information may be of assistance.

Certificates of No Impediment to Marriage

Certificates of No Impediment to Marriage are issued by the Department of Foreign Affairs and Trade through overseas missions and state and territory offices to Australian citizens seeking to marry overseas.  Certificates of No Impediment to Marriage are not a requirement of Australian law.  They are issued purely at the request of overseas countries seeking to ensure that a marriage involving one or two Australian citizens, celebrated in that overseas country, will also be recognised as a valid marriage by Australian authorities.

• Application form for Certificates of No Impediment to Marriage for use in Poland, Portugal and Turkey (pdf)
• Application form for all other countries (pdf)

The forms are also available from any state or territory office of the Department of Foreign Affairs and Trade.

Some countries will only accept Certificates of No Impediment issued by the local Australian Embassy or Consulate in the country in which the marriage is to take place.  However, if authorities of the country in which the marriage is to take place have advised that they will accept a Certificate of No Impediment issued in Australia, you should complete the applicable application form for a Certificate of No Impediment to Marriage and return it to your state or territory office of the Department of Foreign Affairs and Trade.   The Consular Fee for a Certificate of No Impediment to Marriage is $90.

Please ensure that you bring your passport when presenting the Certificate of No Impediment to be witnessed by us. We may need to sight documentary evidence of your date of birth, nationality and Australian residency.

In addition to the Certificate of No Impediment to Marriage, the Department of Foreign Affairs and Trade can provide general advice on the requirements which may need to be met in order for a marriage to be legal in a particular country.  For exact details of what requirements will need to be met, persons wishing to marry overseas should contact the embassy or consulate of the country in which they would like to marry.  The following general information may be of assistance.

Overseas marriage authorities often require evidence that the party is free to marry.  Such evidence may be a statement from the Registry of Births, Deaths and Marriages that there is no record of the person having been previously married.  Authorities may also require divorce papers/death certificate of a former spouse in the case of being divorced or widowed.  Overseas marriage authorities generally will also want to sight an original birth certificate and the person’s passport.  Foreign marriage authorities may have further additional requirements e.g. a requirement to reside for a length of time in a country prior to a marriage taking place in that country.

Recognition of Overseas Marriages

The Attorney-General’s Department has responsibility for developing policy about issues relating to family law and marriage, including who can get married, who can perform marriage ceremonies and the validity of overseas marriages.  The rules governing whether or not a marriage is valid under Australian law are to be found in the Commonwealth Marriage Act 1961.

There are currently no Australian diplomatic or consular officers appointed to solemnise marriages overseas under Australian law.

Marriages entered into overseas are generally recognised as valid in Australia

• if the marriage was recognised as valid under the law of the country in which it was entered into, at the time when it was entered into, and
• providing the marriage would have been recognised as being legal under Australian law if the marriage had taken place in Australia.

There is no requirement to register a marriage in Australia which takes place overseas.  The foreign marriage certificate is prima facie evidence in Australia of the occurrence and validity of the marriage.

Marriage to an Australian citizen does not automatically guarantee entry of a citizen of another country to Australia.  The Department of Immigration and Citizenship (DIAC) can advise on immigration to Australia.

You should consult a legal practitioner if you need advice on whether a marriage which has taken place overseas is recognised as being legal in Australia.

The basic rule of recognising foreign marriages is subject to a number of exceptions including:

• where one of the parties was already married to someone else;
• where one of the parties was under marriageable age (i.e. under 18 years of age) and either of the parties was domiciled in Australia at the time of the wedding  under Australian law, exceptions to the requirement that both parties be 18 or older can only be authorised by a judge of magistrate, and then only in respect of a marriage between a person aged 16 or 17 and a particular person aged 18 or over.  An Australian court order only has effect in Australia for the purposes of the recognition of the marriage in Australia;
• where the parties are too closely related under Australian law (including relationships traced through adoption) i.e. either as ancestor and descendant, or as brother and sister (including half-brother and half-sister);
• where parties to the marriage are both of the same sex;
• where the consent of one of the parties was not a real consent due to duress or fraud, mistake, or mental incapacity;
• where a persons overseas divorce is not recognised in Australia.
  (Parties should consult a solicitor if unsure as to whether their marriage will be recognised in Australia, including if there is doubt about an overseas divorce being recognised by Australian authorities.)

Information was obtained from www.smartraveller.gov.au