Now that same-sex marriages are recognised under Australian law, it is possible to apply for a partner visa on the basis of marriage. Under the Marriage Act, a notice of 30 days must be given before a marriage can take place in Australia.
Now that the Marriage Act has been amended it has opened up a new application pathway for same-sex couples. This new legislation will also make it easier to include partners as secondary dependents in a number of other visa pathways.
The regulation defining Interdependency says you must have been in a “relationship” for a period of 12 months immediately preceding the date of application. This “relationship” includes financial, legal, social and domestic criteria and includes living together, or ” not living separately and apart on a permanent basis”.
The Interdependency Visa Category
There is only one category of visa available to the same-sex partner of an Australian permanent resident or citizen the Interdependency visa category. The Interdependency visa is similar to the Spouse visa available to an opposite-sex partner of an Australian resident or citizen but it may be more expensive to apply for the Interdependency visa in some circumstances.
The 457 Visa
There is also only one category of visa which allows a same-sex partner of a primary visa applicant to accompany them to migrate to Australia; the Temporary Business 457 visa. This compares to the myriad of visas available to an opposite-sex couple wishing to migrate to Australia together. The result is that each member of a same-sex couple may have to qualify separately for a visa. If one is not successful, the couple will be separated across the world.
Same-sex Partner Does Not Qualify as a ‘spouse’
Same-sex couples are denied access to the range of visas available to opposite-sex couples because a same-sex partner does not qualify as a ‘spouse’ and is therefore not a ‘member of the family unit’ in the Migration Regulations 1994. Since a same-sex partner cannot be a ‘spouse’, he or she will not qualify for a Spouse visa or a Prospective Marriage visa.
The Interdependency visa is the only visa that is available for a person who is a same-sex partner of another person. A same-sex partner of a person cannot be included as a member of the family unit on a visa application, even if the same-sex couple has been married according to the laws of another country. Under Australian law, only opposite-sex relationships can constitute a spouse relationship.
The Migration Regulations define an ‘interdependent relationship’ to be a relationship between any two people where; there is a mutual commitment to a shared life, the relationship is genuine and continuing; and they live together. Thus, a same-sex partner can be a member of an ‘interdependent relationship’.