COVID-19 has, devastatingly, ruined a lot of couples’ plans for getting married. This can have equally devastating results on couples’ plans to reunite in Australia.
In my last article Travel Exemptions & Partner Visas – What’s Going On? (available here: https://www.msmlegal.com.au/travel-exemptions-and-partner-visas/) I talked about immediate family members and explained that, the context of partner visas and travel exemptions, an ‘immediate family member’ is a person who is either a spouse or de-facto partner of an Australian Citizen or Permanent Resident. I then went on to explain what a de-facto relationship is.
Currently, the Department of Home Affairs (Department) is prioritising onshore partner visa applications (applications relating to couples where the visa applicant is in Australia at the time of lodgment). The Department is also continuing to process offshore Partner Visas for applicants who are married or meet the definition of de-facto relationships (subclass 309 visas).
The Department is continuing to process offshore prospective marriage visa applications (the subclass 300, sometimes referred to as ‘fiancé/fiancée visas’).
As I explained in my last article, the important difference between Partner Visas and Fiancé Visas, is that an engaged couple does not meet the definition of immediate family member because they have not been required to demonstrate that they are in a de-facto relationship and they are not married. Therefore, even if the Department grants the subclass 300 visa, the partner offshore still needs a travel exemption to travel to Australia. The Department are not, in our experience, currently granting travel exemptions for 300 visa holders. This can lead to the 300 visa expiring before the 300 visa holder can enter Australia to marry their sponsor.
Note that getting married or somehow entering a de-facto relationship after the grant of a prospective marriage (subclass 300 visa) is a breach of the visa conditions and may result cancellation of the 300 visa.
However, if you have not already applied for a fiancé visa or a partner visa, are not already married, cannot enter a de-facto relationship for whatever reason and cannot get married traditionally because you are stuck in separate countries, you may want to consider a Proxy Marriage. This may also be a possibility for anyone who has applied for a 300 visa, but as not yet received a decision from the Department to grant the 300 visa.
What is a Proxy Marriage?
Put simply, a proxy marriage is a marriage that takes place when the couple are not in the physical presence of each other. The marriage may occur via Skype or another type of video or voice call.
There are two types of proxy marriage:
- a marriage celebrated in the absence of one of the contracting parties who is represented at the ceremony by a proxy; and
- a marriage celebrated in the absence of two of the contracting parties who are then both represented at the ceremony by a proxy each (AKA a ‘double proxy marriage’).
As you can imagine, these types of marriages are not legal everywhere (e.g. proxy marriages are not currently recognised by the UK or Australia, which countries require both parties be physically present at the ceremony). However, some countries do recognise proxy marriages (like Pakistan and some states in the US which only require one party to be present) and others even recognise double proxy marriages (like Montana in the US).
Proxy Marriage and Australian Immigration
Even though Australia does not recognise proxy marriages conducted in Australia, if the proxy marriage is legally recognised in the country in which it occurs and is legally registered there, Australia may recognise it for migration purposes under ‘common law’.
Thus, a couple may be able to organise a proxy marriage and then be eligible to apply for a Partner (subclass 309 visa) on the basis of that marriage. If granted, because the offshore partner then meets the definition of ‘immediate family member’ (i.e. spouse), no travel exemption is necessary and the 309 partner visa holder will be free to enter Australia.
Note that the Department will scrutinise applications based on proxy marriages much more vigorously than ‘traditional’ in-person marriages.
The couple will still have to satisfy the Department that:
- the law of the country where the marriage was solemnised (that is, where the marriage celebrant authorised the marriage) permits consent to be given by proxy; and
- the marriage was solemnised in accordance with that law; and
- both parties gave ‘real consent’ to the marriage as defined by Departmental policy.
The couple must also still demonstrate that:
- they have a mutual commitment to a shared life together to the exclusion of all others; and
- the relationship is genuine and continuing; and
- they do not live separately and apart on a permanent basis.
If you need help with a partner visa, please contact our team at MSM Legal.
Katie Wren, Senior Lawyer
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The information above is not exhaustive and is subject to change without notice. See the Department of Home Affairs website for current exemption criteria. The contents of this article are for reference purposes only. The contents do not constitute legal advice and should not be relied upon as such. Specific legal advice about your personal circumstances should always be sought separately before taking any action based on this publication or otherwise.