The following is a summary of how spouse visas operate and the usual criteria that must be satisfied to be granted a spouse visa. For a discussion of issues related to the breakdown of relationships and the impact of previous relationships, please see our article on difficult spouse visas.
How spouse visas operate
An applicant for a spouse visa must be sponsored by an Australian citizen or permanent resident, or eligible New Zealand Citizen.
Where a person is granted a spouse visa they will initially receive a provisional spouse visa, which will allow them to remain in Australia until their application for the permanent spouse visa is decided. Two years after spouse visa application is lodged, the visa applicant will be eligible for the permanent spouse visa.
A person may be granted the permanent visa immediately if they have been in a spousal relationship for a lengthy period or where they have dependent children.
Proving the spousal relationship
To be granted a spouse visa, the visa applicant and sponsor must demonstrate that they:
· are either validly married or in a de facto relationship;
· are in a relationship that is genuine and continuing;
· have a mutual commitment to a shared life together; and
· live together (and/or do not live separately and apart) on a permanent basis.
The existence of the relationship will be assessed before a decision is made for both the temporary and permanent spouse visa. If the spousal relationship breaks down before a decision is made on the application for a permanent visa, the permanent visa can only be granted in limited circumstances. See article on difficult spouse cases.
Where the parties are relying on their marriage to satisfy the spouse visa criteria, the parities must establish that the marriage is valid. Whether a marriage is valid will depend on both the law of Australia and the law of country in which the marriage took place.
If the visa applicant and the sponsor are in a de facto relationship, they must show that they have been in a genuine and committed relationship and have lived together (or have not lived separately and apart) for 12 months. However, in certain cases this 12-month rule can be waived.
The genuineness of the relationship and the parties’ mutual commitment to a shared life together as “husband and wife” will then be assessed. In our experience, DIAC want to see a lot of evidence in relation to this aspect of the application and an explanation of the evidence, especially where the couple do not live together or where the relationship has only existed for a short time.
Many people fall into the trap of thinking that because in their mind their relationship is genuine, the visa application will succeed; however, this is rarely correct. By providing considerable evidence to DIAC, you can increase the likelihood that your application will succeed and decrease the processing time for the visa application. Our solicitors/migration agents are experienced in identifying and presenting the evidence the Department requires.
The final requirement is that the couple “live together or do not live separately and apart on a permanent basis.” This is in addition to the 12 month criteria in defacto cases. In many cases the visa applicant and the sponsor will live in different countries. In order to satisfy this criteria evidence must be given to DIAC which proves that they do not consider their separation to be permanent.
We believe that people should not be forced to wait any longer than is absolutely necessary to be reunited with their spouse or to be given permission to continue to live with their spouse in Australia. By taking the time to carefully review and thoroughly prepare your spouse visa application, we are often able to significantly enhance the chances of your visa application succeeding and reduce the processing time.
Please feel free to contact Michael McCrudden, solicitor and migration agent at Craddock Murray Neumann to discuss your spouse case. Michael can be contacted on +61 2 8268 4000 or by email
mmccrudden@craddock.com.au