From 1st July 2009 same-sex de facto couples and their children have been included in the definition of ‘members of the family unit’ for visa purposes, in the same way that spouses and opposite-sex de facto partners and their children are recognised. For a de facto relationship to be recognised under the Migration Act 1958 (Cth), the partners must have been together at least 12 months, or there must be a child of the relationship. In some cases, in order to determine whether a child is considered to be a child of the relationship, legal advice may be needed.
Same-sex partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens may be able to migrate to Australia under the partner visa subclass. All partner visa applicants (whether married or defacto) must be able to demonstrate they and their partner have a mutual commitment to a shared life in a genuine, continuing relationship that is exclusive of any other partner.
Under the Migration Act 1958 (Cth), only registered migration agents and certain exempt categories of people can give migration advice. The Legal Services Commission has a migration section and can provide advice about most types of visa applications other than student and skilled visas. The Migration Agents Registration Authority (MARA) has a register of Australian migration agents at https://www.mara.gov.au/.
Australians seeking to enter into a same-sex marriage overseas can apply for a Certificate of No Impediment to Marriage.
This will allow same-sex couples to participate in overseas marriage ceremonies, and be considered married according to the laws of that country. However, the marriage will still not be recognized in Australia [s 88EA Marriage Act 1961 (Cth)].
More information is available on the Commonwealth government's Smart Traveller website.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.