There is no separate subclass, no extra criterion and no different standard of proof. The equality is in the text of the Act, not in policy that could change: section 5CB of the Migration Act 1958 says a person is the de facto partner of another person "(whether of the same sex or a different sex)", and section 5F uses the same parenthesis for a spouse.
What is different for some same-sex couples is practical. A relationship that had to be concealed — from family, from an employer, or from a state where it was unlawful — leaves a thin paper trail under exactly the headings the regulations tell the decision maker to consider. That is an evidence problem with an evidence answer.
What the Migration Act actually says
Section 5F(1) provides that a person is the spouse of another person, whether of the same sex or a different sex, if the two are in a married relationship. Section 5CB(1) provides the same for de facto partners. From there the conditions are the ordinary ones. Under section 5CB(2) the two must not be in a married relationship with each other, must have a mutual commitment to a shared life to the exclusion of all others and a relationship that is genuine and continuing, must live together or not live separately and apart on a permanent basis, and must not be related by family. Regulation 1.09A of the Migration Regulations 1994 then requires the Minister to consider all of the circumstances of the relationship, including the four matters — financial aspects, the nature of the household, social aspects, and the nature of the couple's commitment to each other. See de facto partner requirements and genuine and continuing relationship.
Same-sex marriage and the partner visa
Marriage between two people of the same sex has been available under Australian law since December 2017. The Marriage Amendment (Definition and Religious Freedoms) Act 2017 received assent on 8 December 2017 and the relevant items commenced on 9 December 2017, replacing the definition in section 5 of the Marriage Act 1961 with "the union of 2 people to the exclusion of all others, voluntarily entered into for life".
The same Act repealed section 88EA of the Marriage Act, the provision inserted in 2004 that had prevented a same-sex marriage solemnised overseas from being recognised in Australia. Since that repeal, an overseas same-sex marriage is assessed under Part VA of the Marriage Act like any other, and for migration purposes under Part VA as modified by section 12 of the Migration Act. The test and the exceptions are set out on overseas marriages. If you are marrying here, see getting married in Australia.
Key facts
The Migration Act's definitions of spouse and de facto partner both say "whether of the same sex or a different sex". Australian marriage law has been sex-neutral since 9 December 2017, and the bar on recognising overseas same-sex marriages went with it.
The evidence problem when the relationship had to be hidden
Regulation 1.09A directs attention to the social aspects of the relationship, and names three things in particular: whether the couple represent themselves to others as being in a de facto relationship, the opinion of their friends and acquaintances about the relationship, and the basis on which they plan and undertake joint social activities.
For a couple who spent years in a country where the relationship was illegal, or unspeakable at home, several of those will be empty for the early years. No one was told. The way through is to say so, and then show what did exist:
- A written explanation in the applicant's and sponsor's own statements, covering the period concerned, why the relationship was concealed, who did know, and what changed. This is a factual account, not an argument. See relationship statement.
- The narrow circle who knew. Almost every concealed relationship has one — a sibling, a flatmate, a colleague. One specific, first-hand statement from someone who was present in the relationship's life is worth more than ten general ones.
- Evidence that is private by nature. Message and call history, transfers between the two of you, travel booked together, shared accounts, a jointly held lease or address, medical or insurance records naming each other. None of it requires anyone else to have been told.
- The shift after arrival. Where the couple's life in Australia is open, the social heading can be built out from the date that became possible.
Applications struggle here when the gap is left unexplained. See social context evidence for what the heading asks for.
Statements from people who knew
Third-party statements matter more than usual here, because the ordinary public record is missing. Form 888 is the Department's supporting statement form for people who know the relationship; Form 888 statutory declarations covers who should write one.
One point of detail catches people out. Where an applicant does not hold a substantive visa when they apply, the Department requires the application to include, at lodgement, at least two statutory declarations made within the last six weeks by an Australian citizen, permanent resident or eligible New Zealand citizen confirming the relationship — and it says explicitly that Form 888, current and previous versions, does not satisfy that requirement. Use the Commonwealth statutory declaration form from the Attorney-General's Department for that purpose. Form 888 is still useful evidence, but it is not a substitute.
Safety and privacy
You choose who is asked to provide a supporting statement. There is no requirement that a parent, a sibling or an employer write one, and nothing in the regulations draws an inference from a particular person's absence — the heading asks about friends and acquaintances generally.
The Department's advice for people in unsafe situations is practical: use a strong, unshared ImmiAccount password, avoid saving passwords in a shared browser, and consider a separate email account for the application. An applicant can nominate the sponsor's email for correspondence or appoint an authorised recipient, although the Department may still make contact directly.
Registered relationships
Registering a relationship under a state or territory scheme removes the 12-month requirement for de facto applicants. Regulation 2.03A of the Migration Regulations requires a de facto applicant to have been in the relationship for at least the 12 months ending immediately before the application, then provides that the requirement does not apply if the relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901. The schemes that count are prescribed by the Acts Interpretation (Registered Relationships) Regulations 2019, which list registers in New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory. That instrument describes each kind of relationship by reference to the state or territory law, without any distinction based on the sex of the parties. Registering your relationship covers each register, and exemptions from the 12-month rule the other ways out of regulation 2.03A.
An application prepared with a migration lawyer is more likely to succeed where the social record is thin for reasons outside the couple's control, because the difficulty is not finding more documents — it is writing the explanation that turns an empty heading into an answered one. No one can promise an outcome.
What to do next
Work out which route you are on. If you married overseas, confirm the marriage is valid for the purposes of the Migration Act first. If you are applying as de facto partners, check the 12-month position and whether registration is open to you. Then sort what you hold into the four matters using relationship evidence, and write the explanation for whatever is missing.
Common questions
Can a same-sex couple apply for an 820 partner visa?
Yes, on the same criteria as any other couple. Section 5CB of the Migration Act 1958 says a person is the de facto partner of another person whether of the same sex or a different sex, and section 5F uses the same words for a spouse. There is no separate subclass, no separate criterion and no additional requirement.
Is our overseas same-sex marriage recognised in Australia?
It is assessed on the same basis as any other overseas marriage. Section 88EA of the Marriage Act 1961, which previously prevented recognition of same-sex marriages solemnised overseas, was repealed by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 with effect from 9 December 2017. Whether a particular marriage is recognised for migration purposes is decided under Part VA of the Marriage Act as modified by section 12 of the Migration Act.
What if we could not tell anyone about our relationship?
Explain it. The social aspects of the relationship are one of four matters the decision maker must consider, and that heading includes whether the couple represent themselves to other people as being in a relationship and what their friends think of it. Where concealment was a matter of safety or law, a written explanation of why the usual social record does not exist, supported by statements from the people who did know, addresses the heading directly rather than leaving it blank.
Does registering our relationship help a same-sex couple?
It does the same thing it does for any de facto couple. Regulation 2.03A of the Migration Regulations 1994 requires a de facto applicant to have been in the relationship for at least 12 months immediately before the application, but that requirement does not apply if the relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901. The prescribed state and territory schemes are described without reference to the sex of the parties.
Can we keep our application private from family?
Largely, yes. You choose who is asked to write a supporting statement, and the Department's own guidance for people in unsafe situations covers protecting an ImmiAccount with a strong password, avoiding saved passwords and using a separate email account. An applicant can also nominate an authorised recipient for correspondence, although the Department may still contact the applicant directly.
Sources
Keep reading
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 →
Arranged Marriages and Partner Visas
How the Department assesses a partner visa where the marriage was arranged, the evidence that carries a short courtship, and the line between arranged and forced.
Read the guide →