The Australian Government, in what can only be described as a petty attempt to impose some members’ beliefs on society, has decided to persist with the fiction that same-sex couples cannot be married, despite the overwhelming tide of public opinion, both in Australia and in many other countries.
As is the case with other areas of Australian law, the definition of a ‘spouse’ is restricted by using the term ‘husband and wife’:
A person is the spouse of another person if the two people are in a marriage that is legally valid in Australia, and:
- they have a mutual commitment to a shared life as husband and wife to the exclusion of all others
- the relationship between them is genuine and continuing
- they live together or do not live separately and apart on a permanent basis.
Clearly, a same-sex relationship will not meet this definition. In practice, this means that same-sex couples are ineligible to apply for spouse visas or prospective spouse visas. This policy is horribly unfair, but unfortunately remains in effect.
Nonetheless, same sex couples are fortunately not discriminated against in their applications for partner (interdependency) visas. How is this achieved? By extending the eligibility for partner visas to de facto couples (i.e. not requiring couples to be ‘married’ in order to obtain a partner visa) and including same-sex couples in the definition of a ‘de facto’ couple. Relevantly, the definition of ‘partner’ provides:
A partner is your spouse or de facto partner (including same-sex partners).
Of course, in order to be eligible for a partner visa you still need to satisfy the Department that you meet all relevant criteria for that visa, but you can rest assured that the fact that you are in a same-sex relationship will not count against you, as it unfortunately does in the case of the ‘spouse’ and ‘prospective spouse’ visas. The application fee for a partner visa is also higher.
We sincerely hope the Government will, at some point in the near future, remove this arbitrary, unfair and nonsensical discrimination from all Australian laws.