Australian partner visas require the visa applicant and sponsor to have a mutual commitment to a shared life to the exclusion of all others. This requirement of an “exclusive” relationship impacts partner visa eligibility for couples who are in a polygamous or polyamorous relationship.
Polygamy or Polyamory?
Polygamy refers to couples who have more than one spouse concurrently, that is, multiple married relationships at the same time.
Whie polyamory generally refers to couples who have multiple romantic relationships with the knowledge of all partners.
Are these relationships recognised in Australia?
In Australia, polygamous marriages are illegal and any existing polygamous marriages are not recognised. Bigamy, marrying someone while already married, is also illegal.
While polyamorous relationships are legal, the partner visa still requires an “exclusive” relationship and so people in polyamorous relationships may have difficulty meeting the legislated requirements.
Where does the requirement of an exclusive relationship come from?
One criterion for the grant of a partner visa is that the couple are in a spousal relationship or a de facto relationship. Both spousal and de facto relationships, require the relationship to be a genuine and continuing one, with a mutual commitment to a shared to the exclusion of all others. You can read more about this at our Partner visa page.
The requirement that the relationship be “exclusive” derives in how spouses and de facto relationships are defined:
Spouses
Section 5F of the Migration Act 1958 (Cth) (Act) defines spouses as:
- A person is the spouse of another person (whether of the same sex or a different sex) where the 2 persons are in a married relationship.
- People are in a married relationship if:
- they are married to each other under a marriage that is valid; and
- they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
- the relationship between them is genuine and continuing; and
- they:
- live together; or
- do not live separately and apart on a permanent basis.
De facto
Section 5CB of the Act defines de facto as:
- A person is in a de facto relationship with another person if they are not in a married relationship with each other but:
- they have a mutual commitment to a shared life to the exclusion of all others; and
- the relationship between them is genuine and continuing; and
- they:
- live together; or
- do not live separately and apart on a permanent basis; and
- they are not related by family.
Both the definition of spouse and the definition of de facto, requires that the couple be in a relationship to the “exclusion of all others”. Naturally, this definition is at odds with the definition of “polygamous” and “polyamorous” relationships, as these relationships are not exclusive.
How do polygamous relationships affect the partner visa requirements?
Only a first marriage can be recognised as a valid marriage, any subsequent marriage cannot be recognised. Where the first marriage has a concurrent polygamous marital relationship(s):
- neither party is able to meet the definition of spouse as they cannot meet the requirement of a mutual commitment to a shared life to the “exclusion of all others”; and
- neither relationship is capable of being a married relationship.
In short, even if the first marriage is a valid marriage, the parties in the relationship cannot meet the requirements of a partner visa if either party is in a concurrent polygamous relationship. This is due to the requirement that spouses are in an “exclusive” relationship and any subsequent marriages, even if not recognised, means that the relationship in the first marriage is not exclusive.
Are there any scenarios where polygamous relationships may be eligible for the partner visa?
Despite the above, there are some scenarios where the first marriage may meet the partner visa requirements. The first marriage may meet the partner visa requirements where there is only 1 ongoing partner relationship, and any concurrent polygamous relationship(s) has already ended. The other relationships must have ended by:
- death;
- divorce; or
- permanent separation.
A “second or third spouse” will not be able to meet the definition of spouse, even if all other concurrent spousal relationships have ended. This is because the “second or third spouse” marriages will not be recognised as married if the marriages occurred while the person was already married.
Could the subsequent marriages meet the definition of de facto instead?
Any marriage concurrent with the first marriage (that is, a second marriage, which took place before the first marriage ended) is not a valid marriage even if it is the only ongoing marital relationship.
Although the second or third marriage cannot meet the definition of “spouse”, the couple may be able to meet the “de facto” definition. The couple will only be able to meet the “de facto” definition where they are in an exclusive relationship, so it requires they are the only ongoing partner relationship, and all other relationships ended by death, divorce, or permanent separation.
How do polyamorous relationships affect the partner visa requirements?
Whether a married couple with de facto relationships, or a couple with multiple de facto relationships, any ongoing concurrent relationships cannot meet the requirement of an “exclusive” relationship.
For claimed de facto relationships, if either party has an ongoing spouse or de facto relationship with another person, the claimed relationship is not de facto as it is not “exclusive”.
What if the other relationship has ended?
The responsibility is on the couple to show they are in a mutually exclusive relationship and that any relationships they have had with other people have ended.
Generally, people who have been married will submit evidence of a divorce or annulment of the marriage to show that the marriage has ended. If there is reason to believe the divorced or annulled marriage is continuing, the parties may be required to provide further evidence to demonstrate they are in a mutually exclusive relationship.
What if one party is still married but cannot legally end the relationship?
There may be situations where it is difficult or not possible to obtain a divorce or an annulment of a marriage, for example, because of the laws of the country in which the person lives or was previously married. In this case, the parties would need to demonstrate they have made a reasonable effort to obtain a divorce or annulment of a marriage but has been unable to do so. This does not guarantee that the couple will meet the requirements, as they will still need to demonstrate they are in a mutually exclusive relationship.
How are these types of relationships assessed?
The matter of Cabsari reviewed by the Administrative Appeals Tribunal (Tribunal) in 2021 discussed polygamous marriages and how subsequent concurrent marriages can be assessed as “de facto”.
In this case, the sponsor already had an existing marriage (marriage 1) and had a second marriage (marriage 2). After marriage 2, the sponsor claimed the relationship in marriage 1 ended but they had not legally divorced as they did not want the children from marriage 1 being affected by a divorce. Marriage 2 cannot be recognised in Australia and the couple could not claim they were spouses as one of the partners were already married when they were married. However, it raised the question of if the couple could claim they were in a “de facto” relationship because they were in a mutually exclusive relationship once marriage 1 ended. Later on, a legal divorce took place in marriage 1.
The Tribunal accepted evidence that marriage 1 had ended and that the couple did not legally divorce prior to marriage 2 for cultural reasons. Despite not being able to meet the definition of spouses, the couple in marriage 2 were able to meet the requirements of a “de facto” relationship when evidence was provided that they were in a mutually exclusive relationship. This case is quite unique and complex but demonstrates how Tribunal’s may interpret de facto relationship in cases of unrecognised marriages.
Are separate visa applications permitted?
If a concurrent spouse or partner is not eligible for the partner visa due to not being in an “exclusive” relationship, they can still apply for a visa in their own right. This will depend on what other visa options may be available to them and if they are able to meet the primary criteria for a visa grant. They will not be eligible for other visas where it depends on them being a spouse or de facto partner of the primary applicant.
More information?
If you need legal assistance or have an immigration related query, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484. You can also subscribe to our newsletter for the latest Australian immigration news straight to your inbox.
