Recognition of unregistered de facto relationships (opposite sex and same sex)
For an unregistered de facto relationship to be recognised under the Migration Act 1958 (Cth), the partners must have been in the relationship for a period of at least 12 months before lodging the visa application.
However, the 12 month relationship requirement can be waived if there are compassionate and compelling circumstances, for example, if there is a dependant child of the relationship or de facto relationships are illegal in the country in which one or both of the couple reside.
The 12 month relationship requirement does not apply where the applicant is the partner of a person who holds (or held) a permanent humanitarian visa and, before the grant of their visa, the relationship was declared to the Department of Immigration.
Same sex relationships
Same-sex de facto couples and their children are recognised 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.
If the relationship is registered under a law of a State or Territory the 12 month relationship requirement does not apply. This applies to both opposite sex and same sex relationships. The relevant law in South Australia is the Relationships Register Act 2016 (SA).
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 [see Marriage Act 1961 (Cth) s 88EA].
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.