This article will outline abuse of spousal laws (Division 12, Subdivision B of the Migration Act). This Division deals with crimes or offences committed in relation to the misuse or exploitation of laws that provide certain rights or benefits to spouses.
This Division likely focuses on situations where individuals intentionally misuse or abuse legal provisions that protect or benefit married couples. The offences described in this section may involve actions such as:
- Fraudulently obtaining spousal benefits;
- Misrepresenting marital status for personal gain; or
- Engaging in illegal activities while taking advantage of spousal privileges.
Read on to learn more about abuse of spousal laws.
Section 237: Why Was Abuse of Spousal Laws Enacted
According to Section 237 of the Act, this Subdivision was enacted because of the following reasons:
1. The regulations state that a person is eligible for certain visas that grant or could lead to permanent residency in Australia. This is true if:
- They are the spouse or de facto partner of an Australian citizen or a permanent resident; and
- They have a genuine and ongoing relationship characterised by a shared life exclusive of all others.
2. Some individuals attempt to obtain permanent residency under these regulations by:
- Entering into a marriage that parties did not intend to be a genuine and continuing relationship involving a shared life exclusive of all others.
- Pretending to be the de facto partner of another person.
Section 238: Interpretation
Section 238 of abuse of spousal laws defines important terms from this Subdivision. Below is a table of these terms with their definitions.
|This term is defined broadly and includes not just a complete criterion, but also a part of a criterion.
|This term refers to a type of visa that individuals usually apply for when they are either already applying or intend to apply for a permanent visa.
|This term has two meanings under this section:
– It refers to a permanent visa, which is a type of visa that grants individuals the right to permanently reside in the country and may come with additional privileges or benefits.
– It also includes a preliminary visa, which was defined earlier. So, “stay visa” in this context encompasses both permanent visas and preliminary visas.
Section 239: Application of Subdivision
According to Section 239 of abuse of spousal laws allowing spouses:
- This Subdivision applies in and outside Australia.
- This Subdivision applies to marriages solemnised outside Australia as well as those solemnised in Australia.
Solemnisation is the formalisation of your marriage through an official wedding ceremony. During this ceremony, a selected officiant, known as a solemniser, will validate all necessary legal documents. They will ensure the mutual consent of both parties and oversee the signing of the Certificate of Marriage.
Section 240: Offence to Arrange Marriage to Obtain Permanent Residence
Section 240 of abuse of spousal laws outlines different subsections. The subsections are as follows:
Subsection 1: A person cannot arrange a marriage between two other individuals with the intention of helping one of them obtain a stay visa solely based on the marriage. Parties typically seek the stay visa to fulfil the criteria for the visa through this arranged marriage.
Penalty: The penalty for this offence is imprisonment for a period of 10 years, a fine of 1,000 penalty units, or both.
Subsection 2: Subsection 1 applies regardless of whether the intention to secure the stay visa is actually achieved or not.
Subsection 3: It is a valid defence against an offence under subsection 1 if the defendant can prove that although one purpose of the arranged marriage was to assist someone in obtaining a stay visa, they genuinely believed, based on reasonable grounds, that the marriage would result in a legitimate and enduring marital relationship.
Note: It is important to note that in relation to subsection (3), the defendant has a legal burden to establish their belief in the genuine and continuing nature of the marital relationship. Section 13.4 of the Criminal Code outlines this burden of proof.
Section 241: Offence to Arrange Pretended de Facto Relationship to Obtain Permanent Residence
According to Section 241 of abuse of spousal laws:
Subsection 1: Engaging in arrangements that falsely portray two individuals as de facto partners, even when they are not, is strictly prohibited. The purpose of such arrangements is to assist one of the individuals in obtaining a stay visa by creating the illusion of meeting the visa’s criteria through the alleged de facto partnership.
This prohibition aims to prevent the manipulation of visa requirements by feigning a de facto partnership. The punishment for this offence is imprisonment for a period of 10 years, a fine of 1,000 penalty units, or both.
Subsection 2: Subsection 1 applies regardless of whether the intention to assist in obtaining the stay visa is actually accomplished or not.
Section 243: Offences Relating to Application for Permanent Residence Because of Marriage or De Facto Relationship
Section 243 of abuse of spousal laws indicates that:
Subsection 1: When applying for a stay visa, a party cannot claim eligibility as the spouse or de facto partner of another person. This is true if there is no intention to live permanently with them in a married or de facto relationship, as defined in subsections 5F(2) or 5CB(2) respectively.
The applicant must genuinely intend to establish a lasting married or de facto relationship with the other person. This is necessary so the applicant can meet the visa’s criterion for eligibility at the time of application.
Subsection 2: A non-citizen in Australia convicted of an offence under Subsection 1 becomes an unlawful non-citizen.
Subsection 3: Nominating a stay visa applicant as a spouse or de facto partner is prohibited if not intending permanent cohabitation and a married relationship. The nominator must genuinely plan a lasting relationship to meet the visa’s eligibility criterion. Failure to demonstrate intention may render the nomination invalid and have legal consequences. The penalty for this offence is imprisonment for 2 years.
Section 245: Offences of Making False or Unsupported Statements
Section 245 of abuse of spousal laws outlines the offences of making false or unsupported statements in relation to certain questions concerning married or de facto relationships. Here’s a breakdown of the section:
- A person cannot make a false or misleading statement/information in writing to an officer regarding the married relationship or de facto relationship between other individuals. Here is additional information:
- The statement or information is false or misleading in a material particular.
- The offence occurs when a false statement or information is made in a document that describes the offence and its penalty.
- The penalty for this offence is imprisonment for 12 months.
- Additionally, a person cannot make a false or misleading statement or provide false information in writing to an officer regarding the married relationship or de facto relationship between other individuals. Here is additional information:
- The statement or information is false or misleading in a material particular.
- The person making the statement or providing the information failed to make appropriate inquiries to ensure its accuracy.
- The offence is committed when a false statement or information is made in a document that describes the offence and its penalty.
- The penalty for contravening this subsection is 120 penalty units.
Seeking Legal Advice About Abuse of Spousal Laws
JB Solicitors can provide invaluable guidance and ensure compliance with migration and immigration laws. Our lawyers’ expertise can help individuals understand the specific requirements, make appropriate inquiries, and ensure the accuracy of their statements.
This way, we can mitigate the risk of unintentional errors or misleading information. Contact us today for more information about abuse of spousal laws.