Same-sex partner visa for Australia: the same criteria, and the evidence when you could not be open

MARN 1576536

The law

The Migration Act defines a de facto partner as a person in a de facto relationship with another, without reference to sex, and has done since 1 July 2009. The Marriage Act has defined marriage as the union of two people since 9 December 2017, and the same amendment recognised same-sex marriages lawfully performed overseas, whenever they took place. The partner visa criteria refer to those definitions and to nothing else. A same-sex couple is a couple; the visa is the partner visa; the sponsor is the Australian partner; the criteria are the ones in the partner visa guide. There is no separate stream, no additional test and no discretion to treat the relationship as less than it is.

Marriages

A marriage performed in Australia since December 2017, or lawfully performed in a country that permits same-sex marriage, is a marriage for the partner visa, and the couple applies as spouses with the certificate as the evidence of the marriage, and the ordinary evidence of a genuine and continuing relationship besides. A ceremony in a country that does not permit same-sex marriage, religious, cultural or private, is not a marriage, because it was not valid where it took place; it is evidence of commitment, and the couple applies as de facto partners. A marriage from a country that does permit it, between partners one of whom is from a country that does not, is valid in Australia regardless of the other country's view.

De facto relationships and the twelve months

A de facto couple must show a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and that they live together or do not live separately and apart on a permanent basis. For most partner visas the relationship must also have existed for twelve months before the application, unless it is registered under a state or territory relationship register, or compelling and compassionate circumstances apply. Registration is available to a couple where at least one lives in the registering state, it takes weeks, and it is the surest route for a couple who cannot show twelve months of cohabitation; the registration guide sets out each state. The compelling circumstances route is where a couple who could not live together because of the law in one partner's country makes their case, with evidence of the obstacle and of the relationship conducted around it.

The four aspects, on the evidence that exists

The Department assesses the financial aspects, the nature of the household, the social aspects and the nature of the commitment, on the evidence provided, and it does not require any particular document. A couple with a joint lease, a joint account and a wedding album lodges them. A couple without them lodges what they have and explains why the rest does not exist: statements from each partner setting out the history and the obstacles; the record of communication between them across the period; travel to be together and the bookings and stamps that prove it; money sent between them; the account of the partner who has been in a safe place, with that partner's lease, friends and family who knew; photographs where photographs were safe. The evidence checklist lists the usual documents; the skill in these applications is in substituting for the ones that could not be made.

When your country did not let you be open

The Department's policy recognises that same-sex couples from countries where the relationship is criminalised or socially dangerous may have little or no documentary evidence from that country, and that the absence is explained by the circumstances rather than by the relationship not existing. The application says so plainly: which country, what the law and the social position are, what the consequences of being known would have been, and how the couple conducted the relationship as a result. Country information from reputable sources supports the explanation. The evidence then comes from the places it could safely exist: the other partner's country, the couple's own communications, third countries where they met, Australia once one of them is here. A case built on silence fails; a case that explains the silence and fills it from elsewhere succeeds on the same criteria as any other.

Witnesses and Form 888

Statutory declarations from people who know the couple, on Form 888, are part of every partner application and carry more weight here, because they stand in for the documents. The witnesses need not be family, and a couple whose families do not know or do not accept the relationship draws on friends, colleagues, community members, people who have seen the couple together in a safe place, and the Australian partner's family where they are supportive. Each declaration says how the witness knows the couple, what they have seen, and over what period; a witness who was told in confidence years ago is valuable precisely because of the confidence. The Form 888 guide covers who can make one and what it should say.

Safety

The Department treats the application as confidential and does not disclose it to third parties. It does not contact a family member, an employer or an authority in a country where doing so would endanger the applicant, and the application tells it where that is so. An applicant still in a country where the relationship is dangerous keeps the application and its documents where they cannot be found, uses the Australian partner's address and the agent's for correspondence, and plans the departure with the visa decision rather than before it. Witnesses in that country are approached only where it is safe for them. These are practical matters, and they are part of the advice, not an afterthought to it.

The interview

Where the Department interviews, it interviews the applicant and the sponsor separately about the relationship: how they met, how they communicated, the household they keep or plan, the finances, the families, the future. The questions are the same for every couple. A couple who could not live together is asked how the relationship was conducted, and the answers are consistent with the statements in the application because they are true. The interview guide sets out what is asked and how to prepare.

Protection considerations

A person who faces persecution in their country because of their sexual orientation may have a claim to protection in Australia on that ground, and that claim is separate from the partner visa and decided on different criteria. The partner visa is usually the stronger and faster route where the relationship is genuine and the Australian partner can sponsor, and it does not depend on the applicant proving persecution. Where the relationship ends, or the sponsor cannot sponsor, the protection claim is the route to consider, and it is considered with advice, because the two applications interact and the order matters.

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General information only, current at October 2026; not advice on your own case. Sections 5CB and 5F of the Migration Act 1958, regulation 2.03A of the Migration Regulations 1994, and the Marriage Act 1961 as amended in 2017, as in force at the date above. Outcomes depend on the Department’s assessment of each application; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.