August 2021
In a world where international travel is extremely limited and, in some cases, unsafe, intended spouses may well wonder if it is possible for them to get married “by proxy”.
What is a Proxy Marriage?
A proxy wedding or proxy marriage is a wedding in which one or both of the individuals getting married are not physically present, usually being represented instead by other persons.
Are Proxy Marriages recognised in Australia?
The Australian Marriage Act 1961 (Cth) does not generally recognised proxy marriages as valid marriages under Australian law.
Can I apply for an Australian Partner visa if my spouse and I were married by proxy?
The answer to this question depends upon a number of factors.
In order to apply for an Australian Partner visa on the basis of your married relationship, you must be capable of being characterised as ‘spouses’ in accordance with s. 5F of the Migration Act 1958 (Cth).
Section 5F(2)(a) of the Act indicates that, for you and your spouse to be considered to be in a married relationship, you must be married to each other under a marriage that is valid for the purposes of the Act.
Thus while a proxy marriage is not a valid marriage under the Marriage Act 1961 (Cth), the Department of Home Affairs’ view is that while Australian law requires that consent be given by both parties in person, in some countries, marriage by proxy is permitted and the marriage can be considered valid in certain circumstances.
In order to prove the validity of the proxy marriage, the Partner visa applicant and their spouse must demonstrate that:
- the law of the country where the marriage was solemnised (that is, where the marriage celebrant authorised the marriage) permits consent to marriage to be given by proxy; and
- the marriage was solemnised in accordance with that law; and
- both parties gave real consent to the marriage.
‘Real consent’ is a concept in the Marriage Act 1961 (Cth), taking its definition from s. 23B of that Act which deals with grounds upon which marriages can be considered void. It provides that a marriage could be considered void where:
‘(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud
(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed or
(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony’.
By operation of s. 88D(2)(d) of the Marriage Act 1961 (Cth), foreign marriages are not recognised if ‘real consent’, as outlined above, was absent.
If all of the above requirements in relation to legality of the marriage overseas and ‘real consent’ are met, Departmental policy indicates that the marriage may be recognised for the purpose of s. 5F(2)(a) of the Act.
As with all matters related to Australian visas, it is very important that adequate documentary evidence is provided to demonstrate that a proxy marriage is a valid marriage for Partner visa purposes. Failure to demonstrate the validity of the marriage can lead to refusal of the Partner visa application, potentially loss of application fees paid, and further lengthy periods spent apart for the parties to the marriage.
To speak with an experienced, specialist immigration lawyer regarding your Australian visa application or options, please contact us on +61 3 9329 8744 or by email at info@erskinerodan.com.au
