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A partner visa provides a pathway for your wife (or husband, both of whom are referred to as a spouse in the migration provisions) to settle permanently in Australia. To qualify for a wife, or partner visa, several requirements must be met which extend beyond holding a marriage certificate. One of the most important elements of a partner visa application requires married applicants to demonstrate that they are in a genuine married relationship with their Australian spouse. If you are seeking to bring your wife to Australia on a genuine partner visa, you must be an Australian citizen or permanent resident, or eligible New Zealand citizen, and you must be approved as a sponsor. Other requirements including health and character criteria, also apply.

Provided she is eligible, your wife can apply for a partner visa either onshore or from outside Australia, with the following options available:

  • Partner subclass 820/801 visa (onshore); and
  • Partner subclass 309/100 visa (offshore).

The partner visa application process comprises a 2-stage process. The first step involves lodgement of a combined temporary and permanent visa application. If your wife’s application is successful, she will be granted a temporary partner visa. This visa will allow her to reside in Australia whilst she awaits processing of her permanent residence visa application. As a temporary partner visa holder, she will be able to work and study in Australia, and she will have access to Medicare, Australia’s health care system. She can also enter and depart Australia on an unrestricted basis and is eligible for up to 510 hours of free English language classes (Adult Migrant English Program).

Two years following lodgement of her partner visa application, the Department will commence assessing your wife’s permanent residence visa application. This stage of the process requires lodgement of a further application and she will need to supply documentary evidence to confirm that she is eligible for grant of the permanent visa. One of the most important aspects at this stage of the application process is to demonstrate that your married relationship has continued to exist and that you and your wife still meet the legislative definition of spouses under the migration provisions. As her Australian partner, you must also remain as your wife’s sponsor for the visa to be granted. As with the temporary partner visa application, other requirements such as health and character criteria also apply.

If you wife applies for a partner visa onshore, she will be granted a Bridging Visa, which will allow her to lawfully remain in Australia whilst she awaits a decision on the temporary subclass 820 visa application (be aware that a Bridging Visa only comes into effect in certain circumstances – see our article on Bridging visas for partner visa applicants for further details).

Lodgement of an offshore partner visa application will not result in the grant of a Bridging Visa. This means that your wife may only enter Australia once the temporary subclass 309 visa has been granted. As visa processing times can be lengthy, your wife could consider applying for another visa, such as a Visitor Visa (subject to meeting all relevant requirements) to allow her to enter Australia for a shorter-term period, during the period when you await an outcome on the partner visa application.

Schedule 3 of the Migration Regulations may also apply if your wife is applying for a partner visa onshore, if she does not hold a substantive visa at time of lodgement of her application. A substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa.

To maximise her chances of visa grant, you wife needs to provide strong supporting evidence demonstrating that she meets all relevant requirements for visa grant. Equally as important, your evidence as sponsor will also be a critical determining factor in whether your wife is eligible for a partner visa. if it is the case that your relationship does not clearly fall within the definition as it applies to married couples under the legislative provisions, it is imperative to address this by providing adequate explanations and documentary evidence with your application.

For example, one element of the definition of spouse is the requirement that you and your wife live together, or you do not live separately and apart on a permanent basis (this is discussed further below). The Department recognises that all relationships are unique, and, in some circumstances, it may not be possible for spouses to live together. For example, work commitments may require you to live apart from your wife for a certain period. In these circumstances, you need to adequately explain the circumstances of your relationship which have resulted in you living apart, and supply documentary evidence in support of these claims. If you simply ignore this part of the application, it will likely be refused (the Department is not obligated to follow up on missing and/or inconsistent information/documents). To avoid this outcome, ensure that you and your wife are fully informed about the evidentiary requirements which apply before you lodge your partner visa application.

You can also help maximise your chances of a successful application by being aware of the top reasons for partner visa applications being refused and what Departmental case officers look for when deciding partner visa applications. This will enable you to pre-empt any potential issues arising with your application, and to address them upfront rather to leaving things to chance and risking a refusal. Understanding why partner visa applications are so tough can also help in this regard. Being knowledgeable on the latest and most up-to-date and comprehensive information is key when it comes to a successful partner visa application. Given their complex nature and legislative changes that often affect partner visa applications, and with major changes ahead for partner visas, we recommend that you seek professional advice to ensure that you lodge a complete and correct partner visa application, thereby giving yourself and your wife the best chance of a successful result.

For further information, we recommend that you refer to our article providing an overview of the partner visa as well as a detailed guide for married couples. You can also access our fact sheets on the onshore Partner subclass 820/801 visa, and the offshore Partner subclass 309/100 visa for a discussion on the specific eligibility requirements, costs, timing, how to apply, and documents required for each of these visa subclasses. Our partner visa assessment tool will also help you to assess whether your relationship is up to immigration standards.

In this article, we take a closer look at how a married relationship is defined for partner visa purposes, being one of the key requirements for grant of a partner visa.

Your relationship

The central component of a partner visa application is demonstrating that your married relationship is in accordance with the relevant legislative definition under the migration provisions. To meet this requirement, the following criteria must be satisfied:

  • Your marriage must be legally valid in Australia (if you were married overseas, your marriage must be legally recognised in Australia to be eligible);
  • You and your wife must have a mutual commitment to a shared life as a married couple, to the exclusion of all others;
  • Your relationship must be genuine and continuing; and
  • You must either live together, or not live separately and apart on a permanent basis.

When is a marriage legally valid in Australia?

Marriages in Australia are conducted under the Marriage Act 1961 and are valid for migration law purposes (provided both parties have provided real consent for the marriage to occur).

If a marriage is conducted overseas, the Department will need to establish whether it is recognised as a legally valid marriage in the country where it took place. To be valid in Australia, the same rules will apply, that is, real consent must be provided by both parties to the marriage.

You will need to provide your Marriage Certificate as part of your application, which should be accompanied by an official translation if the document is not in English.

What about arranged marriages?

In some cultures and religions, it is common for marriages to be arranged by relatives, friends or marriage brokers. This fact alone does not affect the recognition of a marriage under the Marriage Act or migration law, unless one of the parties to the marriage has not given real consent to the marriage taking place.

Even so, where a marriage has been arranged, you can expect that the Department will scrutinise the application more closely to confirm that it is in fact a genuine, on-going, mutually exclusive marital relationship.

It is therefore even more important in such cases to provide strong supporting evidence to demonstrate that the marriage is a genuine one and meets the relevant definition as outlined above. See our guide which provides further information on the types of evidence that you can provide to cover each of the key aspects of your relationship as per visa grant requirements.

When will a marriage not be recognised?

The following marriages, which may be recognised in the countries where they were took place, will not be recognised as valid under the migration provisions and therefore will not be eligible for the grant of a partner visa:

  • certain polygamous marriages;
  • marriage in which the parties are within a prohibited degree of relationship;
  • certain underage marriages; and
  • foreign marriages where the consent of either party was not real consent.

Sam-sex marriages

In Australia, same-sex marriages are legally recognised, and are therefore eligible to apply for a partner visa on the basis of marriage (provided all other requirements are met).

What if you have determined that your marriage is legally valid?

The remaining component of the definition of a ‘spouse’ for this purpose requires you to demonstrate that you and your wife 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.

In assessing whether you meet the above, the Department will consider the following aspects of your relationship:

  • financial aspects;
  • social aspects;
  • the nature of your household; and
  • the nature of your commitment to one another.

These factors are assessed flexibly in the sense that the Department must have regard to all the circumstances of your relationship, and they must also decide the weight to be given to those circumstances and to the four factors listed above. It is therefore a case-by-case decision based on the individual circumstances of each relationship. The Department is not limited to these four factors but can also consider any additional information that is reasonable and practicable on which a decision can be based.

Therefore, the absence of any of these factors in a relationship will not of itself result in a refusal decision. But they are important nevertheless being key elements in establishing that a relationship meets the relevant requirements to be a spouse relationship. Applications which do not clearly and adequately address each of these four factors can expect greater scrutiny.  It is therefore very important to ensure that any shortfalls are thoroughly explained and supplemented with supporting evidence to prevent any potential issues arising.

Continuing on from the example noted earlier, if you are living apart from your wife (whether that be due to work commitments, visa restrictions, etc.), you may not be able to demonstrate the household aspect of your relationship, that is, your living arrangements, sharing responsibility for housework and for the care and support of children. In this case, you need to ensure that you provide a detailed explanation of why you are unable to live together and provide as much evidence as possible of your contact whilst you are apart. A good place to explain your circumstances is in your written relationship statements. Providing evidence of your communication will also be important, which might be in the form of telephone/Skype calls, texts, emails, etc. If you send funds to your wife to assist her in meeting her expenses, you should provide evidence of these payments/fund transfers.

You should continue to periodically upload evidence addressing each of the four relationship factors (to the extent that you can) to your online application throughout the processing period. This ensures that when it comes to the second-stage processing to permanent residence, the Department will have received evidence of your continuing married relationship, which is key to grant of the final stage visa. Again, it is not advisable to wait for the Department to contact you to provide evidence; you need to be proactive and continue to actively gather, compile and submit information to the Department throughout the visa processing period. This will give you the greatest chance of a successful outcome.

A final point to note in closing is that the above information applies equally if you are seeking to bring your husband to Australia on a partner visa, that is, gender has no impact on the application requirements.

Australia’s migrations laws are complex, and each case is different. There are also several terms which are defined in the migration provisions (and whose meanings may differ from their ordinary usage). We recommend that you seek professional advice if your wife is seeking to apply for a partner visa, as being fully informed will give you the best chance of achieving a successful resolution to your case. A migration professional can help you to do this.

For up to date advice on the partner visa application process and eligibility requirements, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.