A question which is often asked is:
‘if you marry an Australian, do you get permanent residency?’
The answer is yes, marrying an Australian to get residency is possible if all relevant valid visa application and grant requirements are met.
If your spouse is an Australian citizen or permanent resident, or eligible New Zealand citizen, they may be eligible to sponsor you for a permanent residency visa in Australia.
Note also that same-sex marriages are equally recognized for migration law purposes.
How So, And What Is The Process Involved?
Well, provided that you are eligible, marrying an Australian to get residency is possible by applying for a Partner Visa, either in Australia or from offshore. Obtaining permanent residence under the partner visa program comprises a two-stage process, whereby an initial application is made for a temporary visa. Once two years have passed since lodgement of your initial application, they will be assessed for the permanent residence visa.
You may reside in Australia during the visa processing period, but how long for will depend on whether you apply as an onshore or offshore applicant.
Apply Onshore
If you apply for a partner visa in Australia, you will be granted a Bridging Visa, which will allow you to remain onshore whilst you await a decision on the temporary Subclass 820 Partner visa application.
A Bridging Visa will come into effect only in certain circumstances, the most common being when your existing visa expires. Once the temporary partner visa is granted, you may continue to live in Australia whilst processing of the final permanent residence component of your application takes place. If successful, you will be granted a Subclass 801 Partner visa.
If you apply for an onshore partner visa and you do not hold a substantive visa at the time of application lodgement, you will need to meet additional criteria, as set out in Schedule 3 of the Migration Regulations (note that a substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa).
If you apply onshore and you either hold, or the last substantive visa that you held was one of the following:
- Subclass 495 Skilled Independent Regional (Provisional) visa;
- Subclass 475 Skilled Regional Sponsored visa;
- Subclass 487 Skilled Regional Sponsored visa; or
- Subclass 489 Skilled Regional Sponsored (Provisional) visa;
you must have held that visa for at least 2 years.
If an onshore application is made and you either hold, or the last substantive visa that you held was one of the following:
- Subclass 491 Skilled Work Regional (Provisional) visa; or
- Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa;
you must have held that visa for at least 3 years.
If you hold one of the following visas:
- Subclass 475 Skilled Regional Sponsored visa;
- Subclass 487 Skilled Regional Sponsored visa;
- Subclass 489 Skilled Regional Sponsored (Provisional) visa;
- Subclass 491 Skilled Work Regional (Provisional) visa; or
- Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa;
or the last substantive visa you held since entering Australia was one of the following visas:
- Subclass 495 Skilled Independent Regional (Provisional) visa;
- Subclass 475 Skilled Regional Sponsored visa;
- Subclass 487 Skilled Regional Sponsored visa;
- Subclass 489 Skilled Regional Sponsored (Provisional) visa;
- Subclass 491 Skilled Work Regional (Provisional) visa; or
- Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa;
you must have substantially complied with the conditions to which that visa was subject.
Apply Offshore
For an offshore application, the process of marrying an Australian to get residency is different in that you will need to wait for the temporary Subclass 309 Partner visa to be granted before you can enter Australia (unless you apply for another visa, such as a Visitor Visa, to enter Australia in the intervening period. In this scenario, you will still need to be located offshore for the partner visa to be granted). Upon grant of the subclass 309 visa, you will be free to enter and temporarily reside in Australia whilst you await a decision on the permanent Subclass 100 Partner visa application.
Note that you can apply for an offshore partner visa application if you intend to marry an Australian citizen or permanent resident, or an eligible New Zealand citizen, provided the intended marriage will, if it takes place, be a valid marriage in accordance with the migration provisions. Importantly, the marriage must have taken place before the temporary subclass 309 visa can be granted. This is designed for a situation where you are planning to marry outside Australia. If instead you intend to marry your Australian partner in Australia, you should apply for the Subclass 300 Prospective Marriage visa (this is discussed further below in this article).
What Can You Do As A Temporary Partner Visa Holder?
In both cases of onshore and offshore lodgement, the grant of a temporary partner visa will mean that you may live in Australia as a temporary resident, have access to Medicare, Australia’s public health care system, as well as work and study in Australia. You can also enter and depart Australia as many times as you like during this period. Additionally, you will be eligible for unlimited hours of English language classes until you reach vocational English, which is provided through the Adult Migrant English Program.
How Can You Qualify For A Partner Visa?
In terms of the application itself, there are a number of requirements that you will need to satisfy to qualify for visa grant. A central criterion in regard to marrying an Australian to get residency is whether your married relationship is in accordance with its meaning under the Migration provisions.
Your Relationship
Most people might say:
We are married, we have a marriage certificate and we had an official ceremony conducted. Is this not enough evidence to prove that we are married?
No, not for a partner visa to meet visa grant requirements. A marriage which is recognized as being legally valid in Australia is only one criterion which needs to be satisfied for this purpose. You must also demonstrate that you and your spouse have a mutual commitment to a shared life as a married couple, to the exclusion of all others, that your relationship is genuine and continuing, and that you are not living separately and apart on a permanent basis.
The Department will assess whether your relationship meets the above by considering four key factors, namely, the financial and social aspects of your relationship, your household and your commitment to one another.
All the circumstances of your relationship will be examined and will guide the Department in determining the weight to be given to each of these four factors. In general, it is expected that a typical married relationship in Australia today is characterized by the following:
- joint ownership of real estate and other major assets, and joint responsibility for financial liabilities;
- a shared household and domestic responsibilities as well as for the care and support of children (as applicable);
- the relationship being known to third parties; and
- an intention of the couple to be in a committed, long-term and exclusive married relationship.
This means that, in general, an application which is presented with strong supporting evidence covering all four aspects is more likely to be a relatively straight-forward one with less chances of being refused.
Having said that, the Department is not required to strictly apply these four aspects in deciding whether your married relationship is in accordance with the migration provisions. Immigration recognizes the individuality and uniqueness of each relationship and that there is no one-size-fits-all approach. There is therefore a degree of flexibility in the way in which they are applied, provided that applicants supply appropriate supporting evidence and explanations to account for the absence of any one or more of these relationship aspects. The evidence that you and your spouse provide is therefore crucial in this regard.
We recommend that you refer to our detailed guide on the evidentiary requirements for a partner visa application, which you can use to help prepare your own application and to ensure that you cover off on all relevant aspects, as required.
Be mindful that your application will likely face a greater level of inquiry and scrutiny by the Department (and therefore a greater chance of a visa refusal) if there is less (or no) clear evidence that your married relationship is in line with the relationship aspects discussed above. Where Immigration has doubts about the genuineness of your married relationship, it can also request that you take part in an interview with a Departmental officer.
The key point to remember is that evidence is key when it comes to applying for an Australian partner visa and to maximizing your chances of achieving a successful result. And when the circumstances of your relationship do not fully support or exhibit the characteristics referred to above, provide clear and detailed explanations with appropriate supporting documentation to address this. Failing to do so can result in an automatic refusal of your application.
As your sponsor, your spouse will also need to apply for, and be granted, approval to sponsor you for the visa as part of this process. It is important to be aware that new requirements which will affect the sponsorship requirements are in the pipeline (although no implementation date has yet been set for these changes to take effect; this could happen at any time going forward). As a result of these changes, the sponsorship will be assessed as a separate process to the visa application and will require approval before the visa can be applied for. This is a significant change to how the program currently operates, under which both the sponsorship and visa applications can be lodged and approved at the same time.
After the changes are implemented, applicants will no longer be able to control the application date of a partner visa application (as they will need to wait until the sponsorship is approved). Complications can arise for onshore partner visa applicants who are in Australia and whose current visa is due to expire soon. The question that arises is what happens if the Department takes longer to decide the sponsorship application and, during this period, your visa term runs out? In this scenario, you would need to apply for, and be granted, another visa to remain in Australia, or, depart the country and apply for the partner visa offshore. Given the significant implications of these changes, we recommend that all potential partner visa applicants consider applying as soon as possible (provided all relevant eligibility requirements are met).
Before we continue our discussion, be mindful that there are further requirements that apply to partner visas, apart from the key criteria explained above. These include health and character requirements, as well as more specific criteria that apply only in certain circumstances. It is very important, therefore, to ensure that you obtain as much information and advice as possible, which is tailored to your specific circumstances before you apply for a partner visa. The rules are complex, and information is key when it comes to maximizing your chances of the visa being granted.
Further Information
As mentioned, being informed about the latest and most comprehensive information in regard to the provisions governing the lodgement and grant of partner visa applications will give you and your spouse the best chance of achieving a positive outcome on your application. To help you make this happen, we have prepared a series of detailed information guides which explain further the important aspects that apply to partner visa applications and what you and your spouse should be aware of when embarking on this process.
But Also Be Aware That Marriage Is Not The Only Way To Obtain Permanent Residency
How so?
Well a de facto relationship may also qualify for a partner visa, and ultimately, permanent residency in Australia.
The application process is the same as for a married relationship, comprising of two stages (as discussed above). But note that some of the eligibilty requirements are different. It is therefore important to confirm all relevant requirements that would apply in your own situation before proceeding to apply as a de facto couple.
One key difference is the meaning of a ‘de-facto relationship’ as compared with a ‘spouse’ relationship.
To satisfy the definition of a ‘de facto spouse relationship,’ the following requirements must be satisfied:
- You and your sponsoring partner are not in a married relationship (in accordance with the migration provisions);
- You and your sponsoring partner must have a mutual commitment to a shared life to the exclusion of all others;
- Your relationship with your sponsoring partner must be genuine and continuing;
- You must either live together, or not live separately and apart on a permanent basis, with your sponsoring partner; and
- You and your sponsoring partner must not be related by family.
In addition to the above, you must also provide evidence to demonstrate that your de facto relationship has been in existence for at least 12 months immediately before lodgement of your application. Note there are exceptions to this minimum relationship requirement period.
Additionally, both the applicant and sponsor must be at least 18 years of age to qualify as a de facto spouse relationship for this purpose.
And Another Option?
If you intend to marry an Australian citizen or permanent resident, or eligible New Zealand citizen, you may consider applying for a Subclass 300 Prospective Marriage visa. Also commonly known as a fiancé visa, this is a temporary visa which will enable you to enter Australia to marry your Australian fiancé.
Within the prospective marriage visa term, you must marry your Australian sponsor, and apply for an onshore Subclass 820/801 Partner visa.
The visa term will be 9 months from the date of grant. Unless the Minister prescribes a specific date, which may be between 9 and 15 months from the visa grant date.
Adopting this visa pathway will also ultimately lead to permanent residence in Australia. Although the overall process will take longer than if applying as a spouse or de facto partner, which has been discussed above in this article.
To qualify for a prospective marriage visa, you will need to meet the following requirements:
- must intend to marry an Australian citizen or permanent resident, or eligible New Zealand citizen;
- must have turned 18 years of age;
- must be sponsored by your fiancé (who must have turned 18 years of age, and is not prohibited from being an Immigration Sponsor);
- must have met your fiancé in person since you each turned 18 years of age;
- you and your fiancé must be known to each other personally;
- demonstrate that you and your fiancé genuinely intend to marry, and that you each intend for the marriage to take place within the visa period;
- The Minister is satisfied that you and your prospective spouse genuinely intend to live together as spouses;
- there is no impediment to the marriage under Australian law (that is, it is legally recognized as a valid marriage in Australia);
- public interest criteria including health and character requirements are met; and
- applicable special return criteria are met.
How Do You Apply For A Partner Visa?
In either the case of a married, engaged or de facto relationship, the visa (Form 47SP) and sponsorship (Form 40SP) applications are to be lodged online through the Department’s website at ImmiAccount (except in limited circumstances where the Department has authorized lodgement of a paper application). Although a sponsorship application is not a legislative requirement for lodgement of a valid application, it is required by Immigration policy.
You and your de facto partner/spouse must provide all required supporting documents by attaching them to the online application. Immigration will correspond with you in relation to your application through ImmiAccount, and you can also use the portal to prepare and submit any relevant forms (e.g. to update about a change in your circumstances, or to notify the details of a new passport).
The online portal is also used by the Department to communicate with you in relation to your application. If you engage a professional, they will prepare your application using their organizations online account with the Department.
The base application processing charge is currently set at $7,715 for the main applicant, however this may differ in certain circumstances. Charges also apply to accompanying eligible family members (such as a child), with the amount payable being dependent on their age. As a guide, for most applicants the fee will be $3,860 for additional applicants aged 18 or over and $1,935 for those aged under 18. Your personal situation will determine the amount that is payable. All such charges are payable at time of lodgement of the application and payment surcharges may apply. Also be aware that all fees are subject to change and you should check the current rate which applies to you before you lodge your application.
You should also be prepared to incur other related costs in connection with your partner visa application, such as:
- health examinations (and additional medical fees where issues are identified);
- police clearances;
- translating documents where they are not in English; and
- professional fees for an immigration lawyer or migration agent (if applicable).
How Long Will The Process Take?
It is important to be aware that the partner visa application and grant process is not a quick one in most cases. You should be prepared for a long wait time to decision. As a guide, based on current Departmental processing times, the overall process can take on average between 32 and 45 months for the onshore application, and between 31 and 45 months for the offshore application to be finalized (these processing times are approximate and do change periodically). This data applies to 75-90% of applications submitted.
How Long Does It Take To Get Permanent Residency In Australia After Marriage?
As discussed above, simply being ‘married’ is not sufficient to meet the partner visa grant requirements. It takes much more than a marriage ceremony to qualify for a partner visa as a married couple. This means you may not necessarily be able to lodge an application once you are married. It is critical that in addition to this, you also meet the remainder of the requirements that apply in your case.
This includes providing evidence demonstrating that you and your spouse meet the four key factors noted above.
Once you have determined that you are eligible and proceed to lodge your application, take note of the processing times mentioned above to get an idea about how long does it take to get permanent residency in Australia after marriage. If you decide to apply as a couple engaged to be married, consider the additional time this would add to the process, which, based on current Departmental processing times, would take on average 23 to 28 months (this data applies to 75-90% of applications submitted).
