There is no rule in Australian migration law that singles out these marriages, and none that accepts them either. The answer comes from the local law that governed the ceremony.
This page explains what these marriages are, how validity is worked out, why they attract careful examination, and what to do if the marriage does not stand up.
What is a proxy marriage, and what is an online marriage?
A proxy marriage is one in which a person authorised to stand in for an absent party takes part in the ceremony on that party's behalf. Where both parties are absent and both are represented, it is sometimes called a double proxy marriage. The practice exists in a number of legal systems, and in some it is confined to particular circumstances such as military service.
An online marriage, sometimes called a virtual or remote marriage, is one conducted over a video link: the licence is issued by a particular jurisdiction, an officiant of that jurisdiction conducts the ceremony, and one or both parties appear by video from somewhere else.
Both raise the same underlying issue. The Australian rules on recognising a foreign marriage are built around the idea that a marriage is solemnised somewhere, and that assumption does more work than usual when the parties were not in the same room, or the same country.
How is validity decided?
Section 12 of the Migration Act 1958 says that for the purpose of deciding whether a marriage is to be 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. Part VA asks whether the marriage was recognised as valid under the local law of the country where it was solemnised at the time it was solemnised, then sets out exceptions in which such a marriage is nevertheless not recognised — among them that a party was already validly married to someone else, or that a party's consent was not real.
Two things follow for a proxy or online ceremony.
The place of solemnisation has to be identified. For an ordinary wedding this is obvious. For a ceremony over a video link, with an officiant in one country, an applicant in a second and a sponsor in a third, it is a real legal question, and it has to be answered before the local law can be applied.
That local law has to be shown to recognise this marriage. It is not enough that the jurisdiction issues certificates. What matters is whether, under its law, a marriage in which a party was absent or appeared remotely is a valid marriage. Some legal systems say yes without qualification, some say yes only in defined circumstances, and some do not permit it.
The full treatment of the recognition test, including the exceptions and the effect of leaving section 88E out, is on overseas marriages.
Watch out
this page does not say whether any particular country's proxy or online marriages are recognised in Australia, and no general guide can. The answer depends on the jurisdiction, on its law at the date of the ceremony, and sometimes on where each of you physically was. Treat it as a question to be resolved with advice before you lodge.
Why are these marriages looked at closely?
Not because a couple who married by proxy or by video are assumed to be doing anything improper. The reasons are documentary.
- The certificate proves less. A marriage certificate only ever goes to one of the four conditions in section 5F — that the couple are married under a valid marriage. Where the registry never saw either party, it carries even less of the weight people expect of it.
- The validity question is live. In an ordinary case a case officer can take validity as read. Here it may have to be decided, and the applicant holds the material that decides it.
- The relationship evidence is often thin at the same time. Couples who married remotely have frequently spent little time in the same country, so the household and financial headings are hard to populate.
None of that is a presumption against the relationship. It is a description of where these applications tend to be under-evidenced, and it is fixable.
What the Department must be satisfied of does not change. Regulation 1.15A of the Migration Regulations 1994 requires the Minister to consider all of the circumstances of the relationship, including the financial aspects, the nature of the household, the social aspects and the nature of the couple's commitment to each other. See relationship evidence.
Alongside the certificate, provide the licence the jurisdiction issued, evidence of who was present and where each of you was at the time, the recording or photographs if you have them, the authority given to any proxy, and a plain account of how and why the ceremony was arranged that way. Translate anything not in English: see identity documents and translations.
What if the marriage is not recognised?
You are not out of options. A couple whose marriage is not valid for migration purposes can apply as de facto partners under section 5CB of the Migration Act, which does not depend on any ceremony. The conditions are a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, living together or not living separately and apart on a permanent basis, and not being related by family.
The catch is timing. Regulation 2.03A generally requires the de facto relationship to have existed for at least the 12 months ending immediately before the application, so a couple who discover the problem after lodging cannot simply switch categories on the same application date. Read de facto partner requirements and exemptions from the 12-month rule before you apply, and note that the subclass 820 also requires the applicant to be in Australia when the application is made — see being in Australia when you apply.
If the two of you have spent most of the relationship in different countries, long-distance relationships covers the evidence that carries that situation.
Getting advice before you lodge
An application prepared by an immigration lawyer is more likely to succeed where the marriage was by proxy or online, because the question that decides the case — which country's law applies and what it says — has to be answered before lodgement, and because the alternative de facto path depends on a 12-month period fixed by the application date. Neither can be repaired once the application is in. No one can promise an outcome.
What to do next
Establish where your marriage was solemnised and whether that place's law recognises it, starting with overseas marriages. At the same time, work out the date your relationship would have met the de facto test, so you know whether that path is open. Then build the evidence under the four matters in relationship evidence.
Common questions
Does Australia recognise a proxy marriage for a partner visa?
There is no blanket answer. Section 12 of the Migration Act 1958 applies Part VA of the Marriage Act 1961 to the question, and Part VA asks whether the marriage was recognised as valid under the law of the country where it was solemnised at the time it was solemnised. So the answer depends on which country's law governs the ceremony and what that law says about marriages where a party was absent. It is decided case by case on the documents.
Is an online or video-link marriage a legal marriage in Australia?
An online ceremony is assessed the same way as any other marriage performed outside Australia: by the law of the place where it was performed. The complication is identifying that place when the officiant, the licence, the applicant and the sponsor were in different countries at the time. That is a legal question worth resolving before lodging rather than after.
What if our marriage is not recognised?
You may still qualify as de facto partners. Section 5CB of the Migration Act does not require a marriage. It requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, that the couple live together or do not live separately and apart on a permanent basis, and that they are not related by family. Regulation 2.03A generally requires 12 months of that relationship ending immediately before the application.
Why are proxy and online marriages examined more closely?
Not because of any presumption about the couple. It is because the usual documentary trail is thinner, the place of solemnisation can be genuinely unclear, and a certificate issued by a registry that never saw either party proves less about the relationship than a certificate alone does in an ordinary case. The four matters in the Migration Regulations still have to be satisfied on evidence.
Can we apply for the subclass 820 if we have never met in person?
The Migration Act does not impose a meeting requirement in terms, but the conditions it does impose are difficult to satisfy without one. Both the spouse test in section 5F and the de facto test in section 5CB require that the couple live together or do not live separately and apart on a permanent basis, and the subclass 820 additionally requires the applicant to be in Australia when the application is made.
Sources
Keep reading
Partner Visas for Same-Sex Couples
Same-sex couples apply for the 820 and 801 on exactly the same criteria — what the Migration Act says, and how to evidence a relationship that had to be hidden.
Read the guide →
Getting Married in Australia Before Applying (NOIM)
The Notice of Intended Marriage, the one-month notice period, who can marry you, and what marrying in Australia does and does not do for a partner visa.
Read the guide →
Is Your Overseas Marriage Recognised in Australia?
The test for recognising an overseas marriage for a partner visa — section 5F(2)(a), section 12 of the Migration Act, Part VA of the Marriage Act, and the exceptions.
Read the guide →