Same-sex marriage in Australia

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Same-sex marriage in Australia


Same-sex marriage in Australia has been legal since 9 December 2017.

The legislation to allow same-sex marriage, the Marriage Amendment (Definition and Religious Freedoms) Act 2017, passed the Australian Parliament on 7 December 2017 and received royal assent from the Governor-General the following day.

The definition of marriage by Liberal Senator Dean Smith's private member's bill would be the union of two people to the exclusion of all others.

That would replace the previous definition, which specifically stated marriage was between a man and a woman.

Looking more closely at the definition used when applying to migrate to Australia from the Philippines under partner visa categories the Migration Act now states under: -

Section 5F    Spouse

(1)  For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

(2)  For the purposes of subsection (1), persons are in a married relationship if:

(a)  they are married to each other under a marriage that is valid for the purposes of this Act; and

(b)  they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

(c)  the relationship between them is genuine and continuing; and

(d)  they:

(i)  live together; or

(ii)  do not live separately and apart on a permanent basis.

(3)  The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

However, even though same sex couples are allowed to be married in Australia it must be pointed out that unless the country of origin permits same sex couple marrying, their union would not be recognised in Australia and currently the Philippines does not recognise same-sex marriages.

Furthermore, the exact rules apply as before for same-sex couples as they have been for heterosexual couples. Here are two (2) scenarios that still need to be complied with.

  1. If the Filipino applicant is still married in the Philippines and no matter how long they have been separated they are not allowed to get married again unless they have secured a proper annulment. Note: Annulments procedures are not always followed in the Philippines and attempted ‘short-cuts’ are common. Providing an annulment to the Department of Home Affairs (DOHA) that has these so called questionable activities involved in their securing the annulment decision may attract sever penalties under the departments Public Interest Criteria 4020 (PIC).
  2. If the Filipino applicant or their Australian sponsor are still legally married then the only way to lodge a valid and genuine partner visa application is for them to have co-habited for 12 month or more unless they can show evidence of a compelling or compassionate nature to be given a waiver.

These and other aspects of a spousal visa application process for Australia from the Philippines need to be taken into serious consideration when contemplating to lodge a valid, genuine and most importantly continuous relationship and attempting to secure a visa grant from the department.

Mapping out a sure fire strategy is the best and only way of approaching these types of expensive visa application from the Philippines for Australia.

December 23, 2017