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In 2009 changes to Commonwealth law removed discrimination against same-sex couples and their children. As part of these changes, new definitions of ‘spouse’ and ‘de facto’ partner were introduced into the Migration Act 1958 (the Migration Act) such that same-sex couples were given the same entitlements as heterosexual couples. This paved the way for all visa applicants to include their same-sex partners and allowed those partner...s the same work rights as ‘spouses’.
All couples -- married or defacto -- are required to demonstrate their relationship is genuine and continuing, that they have a mutual commitment to a shared life and that they live together on a permanent basis.
Permanent visas and some temporary visas generally require defacto couples to demonstrate their relationship has existed for at least 12 months before they lodge their visa application.
There is an exemption to this requirement for de acto couples who have registered their relationship under an Australian state or territory scheme, regardless of their sexual orientation.
It is true that a same-sex marriage that is legally solemnized overseas is not recognized for migration purposes. This is because the Migration Act mirrors the Marriage Act 1961 (the Marriage Act) which means that only marriages valid under the Marriage Act can be recognized when assessing visa applications. While their same-sex marriage is not recognized, couples can still be recognized and assessed under the defacto provisions. The fact that a marriage occurred overseas can be taken into account in this assessment.
While Australia’s migration law does not currently recognize a same-sex marriage solemnized overseas, it is taken to be a defacto relationship which hence gives these couples the same entitlements as heterosexual married or defacto couples.
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