Applying for the subclass 820 as a married spouse means satisfying section 5F of the Migration Act 1958, which sets four conditions, not one. The marriage is only the first. The other three are the same conditions a de facto applicant must meet, and they are where the Department of Home Affairs does most of its assessment.
This page explains what the married path requires, what a marriage certificate does and does not establish, how overseas marriages are treated, and how the path compares with the de facto one. It sits under the 820 visa requirements.
What is a spouse under the Migration Act?
Section 5F(1) says a person is the spouse of another person, whether of the same sex or a different sex, if under section 5F(2) the two are in a married relationship. Section 5F(2) then says persons are in a married relationship if:
- they are married to each other under a marriage that is valid for the purposes of the Act; 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.
All four have to be satisfied. The Act expressly covers same-sex married couples, so the wording of the test is the same whoever you married.
Regulation 1.15A of the Migration Regulations 1994 then tells the decision maker how to determine whether those conditions exist for a partner visa. The Minister must consider all of the circumstances of the relationship, including four matters: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons' commitment to each other. The genuine and continuing relationship page works through each of those.
Does the marriage have to be valid under Australian law?
Yes. Section 5F(2)(a) requires the marriage to be "valid for the purposes of this Act", which is a migration question, not a question about what the couple's home country or community recognises.
For a marriage solemnised in Australia, validity is governed by the Marriage Act 1961. For a marriage solemnised overseas, section 12 of the Migration Act adds a twist: for the purpose of deciding whether a marriage is recognised as valid for the purposes of the Migration Act, Part VA of the Marriage Act 1961 — the part dealing with foreign marriages — applies as if section 88E of that Act were omitted. That makes the migration test narrower than the general Australian one, which is why some marriages treated as valid for other purposes are not accepted for a visa.
Watch out
If there is any doubt about validity — a marriage by proxy, a marriage conducted online with one party overseas, a religious or customary ceremony that was never registered, or a marriage entered into before an earlier divorce was final — the safer course is to check the position before lodging, not after. A marriage that is not valid for the purposes of the Act does not satisfy section 5F(2)(a), and the application then has to stand or fall as a de facto one.
Two related pages deal with these situations directly: overseas marriages and proxy and online marriages. If you have not married yet and are weighing up where to do it, see getting married in Australia.
Is there a 12-month requirement for married couples?
No. The 12-month requirement people have heard about comes from regulation 2.03A of the Migration Regulations, and by its own terms it applies only where "a person claims to be in a de facto relationship for the purposes of a visa application". For those applicants, the Minister must be satisfied the de facto relationship has run for at least the 12 months ending immediately before the date of the application, unless the relationship is registered or there are compelling and compassionate circumstances.
Nothing equivalent applies to married applicants. A couple who married last month can lodge a valid application this month.
That does not make the length of the relationship irrelevant. Under regulation 1.15A the Minister must consider the nature of the couple's commitment to each other, which expressly includes the duration of the relationship and the length of time they have lived together. A very short relationship is not disqualifying, but it leaves less on the record, so the rest of the evidence has to carry more weight.
| Married spouse | De facto partner | |
|---|---|---|
| Definition | Section 5F, Migration Act 1958 | Section 5CB, Migration Act 1958 |
| Minimum period before applying | None | 12 months immediately before the application, unless registered or compelling and compassionate circumstances apply |
| Registration under a state or territory scheme | Not relevant | Removes the 12-month requirement |
| Age | In most cases 18 or older | Both the applicant and the partner must be at least 18 |
| Four prescribed matters | Regulation 1.15A | Regulation 1.09A |
| Not related by family | Not stated in section 5F | Required by section 5CB |
If you could apply either way, married or de facto sets out the trade-offs, and de facto partner requirements covers the other path in full.
How old do married applicants have to be?
The Department says married applicants must, in most cases, be 18 or older when they apply, because you usually must be 18 or older to be married under Australian law. The Migration Regulations do contemplate the narrow case of a spouse under 18: where the applicant's spouse has not turned 18, the sponsor is a parent or guardian of that spouse who has turned 18 and holds the required status. There is no equivalent for de facto applications — regulation 2.03A requires both people to be at least 18. See age requirements.
What a marriage certificate does and does not prove
A marriage certificate is evidence of one thing: that a marriage took place, on a date, between two named people. In the language of section 5F, it goes to paragraph (2)(a) and no further.
It does not establish a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, or that the couple live together and are not permanently separated. And it says nothing about the four matters in regulation 1.15A, which is the material a case officer actually reads.
This is the most common misunderstanding on the married path. Couples with a certificate sometimes lodge a thin application on the assumption that the legal relationship settles the question, then receive a request for more information — or a decision — that turns entirely on finances, household and social evidence they never provided. A marriage certificate alone is never enough. Start with relationship evidence and build all four headings.
An application prepared by an immigration lawyer is more likely to succeed on the married path, for two reasons that are specific to it: validity questions about overseas, proxy, customary or pre-divorce marriages need to be resolved before lodgement rather than argued afterwards, and married applicants are the ones most likely to under-evidence the three conditions the certificate does not touch. No one can promise an outcome.
What to do next
Confirm first that your marriage is valid for the purposes of the Migration Act, especially if it was solemnised overseas. Then treat the certificate as one document among many and work through the four matters in regulation 1.15A. The genuine and continuing relationship page explains what each heading asks for, and the legal definitions of spouse and de facto page sets out the statutory wording in full.
Common questions
Is there a 12-month requirement for married partner visa applicants?
No. The 12-month requirement in regulation 2.03A of the Migration Regulations 1994 applies only where a person claims to be in a de facto relationship. Married applicants can apply as soon as the marriage is valid and the other requirements are met. The length of the relationship still matters, because the duration of the relationship is one of the matters the Minister must consider.
Is a marriage certificate enough to get an 820 visa?
No. A marriage certificate goes to one of the four conditions in section 5F of the Migration Act, that the couple are married under a marriage valid for the purposes of the Act. The Department must still be satisfied about the mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis.
Does Australia recognise our overseas marriage for a partner visa?
It depends on the marriage. Section 12 of the Migration Act says that for the purpose of deciding whether a marriage is recognised as valid for the purposes of that Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted. That makes the migration test of validity narrower than the general Australian one, so some marriages recognised for other purposes are not accepted for a visa.
Do married applicants have to be 18 or older?
The Department of Home Affairs says married applicants must, in most cases, be 18 or older when they apply, because you usually must be 18 or older to marry under Australian law. The Migration Regulations do allow for a married applicant under 18 to be sponsored by a parent or guardian of the spouse who has turned 18 and is an Australian citizen, permanent resident or eligible New Zealand citizen.
Do married couples need to register their relationship?
No. Registering a relationship under a state or territory scheme matters for de facto applicants, because a registered relationship removes the 12-month requirement. A married couple has no equivalent need, since the marriage itself establishes the relevant condition in section 5F.
Sources
Keep reading
Genuine and Continuing Relationship: How Home Affairs Assesses It
How Home Affairs decides if a partner visa relationship is genuine and continuing — the four matters in the Migration Regulations and what case officers look for.
Read the guide →
De Facto Partner Visa 820: The 12-Month Rule
How the 12-month de facto rule works for the subclass 820, what counts towards the 12 months, and how time living apart is treated.
Read the guide →
Exemptions from the 12-Month De Facto Requirement
Ways around the 12-month de facto rule for the 820 — a registered relationship, compelling and compassionate circumstances, and subclass 300 holders.
Read the guide →