Immigration Treatment of Common-Law and Same-Sex Marriage

November 11, 2015

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.

This article provides an overview of common-law and same-sex marriage issues and requirements with respect to immigration in several countries.

Belgium

Belgium legalized same-sex marriage in 2003. Belgium family reunification rules apply equally to all couples without regard to the gender of the two individuals.

Spouses of third-country business migrants in Belgium may accompany and live with their spouses, provided that both spouses are older than twenty-one years, or, if they were already married before the arrival of the business migrant, older than eighteen years. Unmarried partners of third-country business migrants with a “registered” partnership considered equivalent to a Belgian marriage will be treated the same (only “registered” partnerships performed in Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify).

Belgium’s family reunification rules also provide for unmarried “non-registered” partners and common-law spouses, and apply without regard to the gender of the two individuals. Specifically, unmarried, “non-registered” partners and common-law spouses of third-country business migrants from outside the European Union/European Economic Area may accompany and live with their significant others in Belgium, provided that:

  • they are not involved in a marriage or partnership with any other person;
  • they sign a registered partnership together in Belgium;
  • they are able to demonstrate that they have a long-lasting and stable relationship with one another, established by furnishing evidence of prior legal cohabitation (at least one uninterrupted year, in Belgium or abroad); or the existence of either a bona fide relationship (the partners prove that they have known one another for at least two years, have had frequent contact (by phone, mail, or e-mail), have met at least three times over the last two years, and these meetings covered at least forty-five days in total), or that they have a common child; and
  • they are older than twenty-one years or, if they have already cohabited at least one year before the arrival of the business migrant in Belgium, older than eighteen years.

Brazil

On February 18, 2014, effective as of March 20, 2014, the National Council of Immigration published Normative Resolution No. 108, changing the rules for granting visas for dependents (the so-called “family reunion visa”), and cancelling NRs 36 and 77, which until then regulated the subject.

The main changes introduced concerned visas for common-law partners (irrespective of gender), which may now be applied for directly at the Brazilian consulate abroad or at the Federal Police in Brazil, without the need to go through the National Council of Immigration. This rule now applies to all types of family reunion visas and irrespective of whether they are on a temporary or permanent basis.

Another main change is that when there is no official document issued by the government/court attesting to the existence of the common-law partnership, this may be proven through one of the following documents, rather than two as were required before: (i) evidence of dependence issued by a tax authority or by a department corresponding to the Brazilian Federal Revenue Service; (ii) a certificate of religious marriage; (iii) testamental provisions registered at a Brazilian notary or at the competent foreign authority, proving the existence of the partnership; (iv) a life insurance policy or health plan, in which one of the parties appears as establisher of the insurance/plan and the other party as beneficiary; (v) a deed of purchase and sale of real estate, duly registered in the Property Registration Office, in which both parties appear as owners, or a rental agreement in which both parties appear as lessees; or (vi) a joint bank account.

Also, a foreign birth certificate of a common child of the partners is now accepted as proof of a common-law partnership. If there is a common Brazilian child, the visa to be applied for is a permanent visa based on a Brazilian child rather than a visa based on the common-law partners. The acceptance of the health plan as proof of the common-law partnership is another change introduced by NR-108.

There is no citizenship requirement to get married in Brazil.

Canada

Definition of common-law partner. In Canada, common-law relationships are defined in § 1(1) of the Immigration and Refugee Protection Regulations (IRPR). A “common-law partner” is an individual who cohabits with another person in a conjugal relationship for at least one year. A cohabitation period of at least one year is interpreted to mean continuous cohabitation. Common-law partnerships can be between same-sex or opposite-sex partners and are considered to be marriage-like relationships characterized by mutual commitment, exclusivity, and interdependence.

Consequences of common-law arrangements for permanent immigration. As with married spouses, common-law partners in Canada may sponsor their partners for permanent residence and include them as dependents with other permanent immigration applications. Common-law partners must submit substantial documentation to prove that they have been cohabiting continuously for at least one year and to show interdependence, such as documents regarding joint ownership of property, joint travels and photographs, along with a statutory declaration of common-law status. While common-law partners have equal rights with married spouses, they must meet a higher evidentiary burden in terms of proof of their relationship.

Consequences of common-law arrangements for temporary immigration. Common-law partners in Canada, like married spouses, are eligible for open spousal work permits, subject to certain conditions. To prove they are common-law partners, they must submit evidence that they have been cohabiting continuously for at least one year and include documents showing interdependence. However, the number of documents required for temporary residence tends to be fewer than for purposes of a common-law partnership application for permanent residence.

Same-sex marriages. Same-sex marriages are recognized for Canadian immigration purposes if the marriage is legally recognized according to both the law of the place where the marriage occurred and under Canadian law. Same-sex marriages are legal across Canada.

China

China does not recognize common-law marriages, or marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. There is currently no way around these restrictions.

France

General provisions relating to marriage from the law of May 17, 2013, conflict of laws, and consular marriage. France’s Civil Code now recognizes both same-sex and different-sex marriages. Article 202-1 of the Civil Code provides that the personal law of each spouse governs the conditions for marriage, but then Article 202-2 provides that two persons of the same sex can marry when the personal law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the personal law of one spouse prohibiting marriage between persons of the same sex when the marriage took place in the territory of a state recognizing marriage between persons of the same sex.

The above implies, for the Constitutional Council, that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia, and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals frequently may find themselves in situations where their countries of origin do not recognize their marriages in France unless those countries have adopted legislation similar to the new French legislation.

A consular marriage between same-sex French nationals does not raise issues. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in prohibiting countries (which are in the majority). In such case, the Civil Code provides that the marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples may be recognized retroactively if they were validly celebrated abroad at a time when French law forbade such marriages.

The impact on French immigration rights of foreign nationals moving to France. Marriage now carries the same effects, rights, and obligations whether between persons of different sex or the same sex.

  • Derivative residency and work rights known as “accompanying family rights” apply to married foreign workers under Inter-Company Transfer, EU Blue Card, or Skills and Talents status, regardless of the gender identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA.
  • A same-sex marriage between a foreign national and a French national will allow the issuance of a visa and residence permit to the foreign national as the spouse of a French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.
  • The marriage between a third-country foreign national in the European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121-5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay may be considered as disproportionate interference with rights to private and family life, under Article 8 of the European Convention on Human Rights.

Domestic partners, however, will not enjoy the same immigration rights as same-sex married couples. Even domestic partners who contract the French form of domestic partnership agreement (PACS) will not qualify for “accompanying family rights.”

Hong Kong S.A.R.

Hong Kong does not recognize marriages or partnerships between two individuals of the same sex for immigration purposes. Accordingly, a same-sex partner of a person holding permanent resident status or an employment visa cannot be granted dependent status.

However, the Hong Kong Immigration Department does exercise discretion for those living in a relationship akin to marriage and will grant an extended visitor’s visa to the partner of a person who is granted an employment visa. The person seeking such status must demonstrate that he or she has the financial means to support himself/herself or that the partner can support and provide accommodation to him or her and that a pre-existing relationship of some time has existed. The holder of this extended visitor’s visa cannot work, so in practice, very few applications are lodged for extended visitor status.

India

India is still a far cry away from providing immigration benefits to same-sex couples. India not only disallows same-sex marriages but also criminalizes relationships between same-sex partners, terming them as unnatural. Section 377 of the Indian Penal Code (IPC), an archaic law, was introduced in 1861 during British rule in India, which criminalized “carnal intercourse against the order of nature with any man, woman or animal” with a maximum sentence of life imprisonment. On December 11, 2013, the Supreme Court in Suresh Kumar Koushal vs. Naz Foundation  held that there was no constitutional infirmity in Section 377, and shifted the onus onto parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws.

The Indian government filed a review petition in the Supreme Court on December 20, 2013, challenging the earlier judgment upholding Section 377, stating, “Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution.” On January 29, 2014, the Supreme Court refused to accept the petition seeking a review of its judgment on Section 377. In April 2014, activists within the LGBT community filed a curative petition, which can be filed as a petition of last resort if the Supreme Court dismisses the review petition. The Supreme Court agreed to consider the plea in an open court on the curative petition. It has yet to form a Constitution Bench to hear the curative petition.

It is also worth noting that in 2014, the Supreme Court delivered a landmark verdict in NALSA v. Union of India providing transgendered people with equal rights and opportunities under the law. The Court also directed the central and state governments to ensure recognition of transgender as a “third gender,” and to create equal opportunities for transgendered people in educational institutions and government jobs by providing “reservations” (preferences or quotas reserved for transgendered people).

.A bench of Supreme Court Justices in Uday Gupta v. Aysha & Anr, decided on April 21, 2014, issued clarification on a petition filed by advocate Uday Gupta, who had questioned certain sweeping observations made by the Madras high court when dealing with the issue of live-in relationships. Importantly, the Supreme Court observed that children born from prolonged live-in relationships could not be termed illegitimate. The Supreme Court further held that if a man and woman “lived like husband and wife” for a long period and had children, the judiciary would presume that the two were married.

In April 2015 in a property dispute case, a two-judge Supreme Court bench affirmed that continuous cohabitation of a couple raises a presumption of a valid marriage. The name of this case has been withheld to ensure the privacy of the litigants. The bench reiterated that it is well settled that there is a presumption in favor of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. The presumption can be rebutted by unimpeachable evidence, although a heavy burden lies on a party who seeks to undermine the relationship as a legal marriage. In this case, family members of the deceased—the grandfather—claimed that after the death of his wife, for the past 20 years, he had been living with a woman who was not legally married to him. After examining the evidence, the Supreme Court presumed that the woman was his wife, after the family members admitted that the deceased was in a relationship with the woman and she also lived with the joint family.

Italy

Italy does not recognize common-law spouses or marriage between partners of the same sex.

However, starting in 2012 and following a court’s decision, the immigration authorities have started to approve “family applications” filed by same-sex partners of European Union (EU) citizens, provided that the couple is legally married in a foreign country that recognizes same-sex marriages.

This step toward the recognition of same-sex relationships has been possible thanks to EU directives granting to citizens of the EU and their family members the right to move and reside freely within the territory of the Member States.

Italian law does not recognize domestic partnerships, and the immigration system does not provide any option for them.

Japan

Japan does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. The same-sex spouse or partner can try to apply for a dependent visa and the case will be referred to the Ministry of Foreign Affairs in Japan, which can grant the visa, but the chances of a visa being approved on that basis are extremely low.

Mexico

Common-law marriages. In Mexico, couples living under a common-law marriage have reciprocal rights and obligations when, having no legal impediments for marriage, they have lived together constantly and permanently for at least two years. This time requirement is not necessary when they have a child.

According to the Civil Law in Mexico, since October 2014 the judges of the Civil Registry may receive statements regarding the existence or cessation of a common-law marriage and issue a Certificate of Cohabitation.

For foreigners wishing to live in Mexico under temporary or permanent residence as non-married partners, two options exist depending on the circumstances:

  • If both are in their country of origin and one of them is issued a job offer in Mexico, they first must apply for a visa authorization by job offer at the National Immigration Institute (INM) in Mexico. Once this visa authorization is issued, they both must apply at the Mexican consulate having jurisdiction over their place of residence, for a temporary residence visa by family unit. The consulate will ask for a list of required documentation, including an official Certificate of Cohabitation, issued according to the legal framework and local customs of their place of residence.
  • If a temporary resident is already in Mexico and the non-married partner is in another country, the petitioner in Mexico must apply at the INM in Mexico for a visa authorization by family unit, and present a Certificate of Cohabitation issued by the competent authority of the country where they lived in common, constantly, and permanently for at least five years.

For both cases, once a temporary or permanent residence permit is issued to a non-married couple, for immigration purposes they acquire the same rights and obligations as a traditionally married couple.

Nonetheless, unmarried couples frequently face challenges when it comes to demonstrate family bonds as many countries may not issue a cohabitation certificate that is acceptable for Mexican immigration authorities and the criteria are discretionary.

Same-sex marriage. On December 21, 2009, the legislative assembly in Mexico City, D.F., legalized same-sex marriage and accorded adoption rights to same-sex parents. It was the first city in Mexico and in Latin America to legalize same-sex marriages. These reforms in the capital’s civil law have spread to other entities in Mexico.

The Migration Act of November 2012 established regulations for domestic partners to obtain Mexican visas on the basis of their bonds with Mexicans or foreign residents in Mexico.

The requirements for domestic partner visas in Mexico are similar to those for different-sex married couples, but with more stringent requirements. While same-sex married couples are treated as domestic partners for Mexican immigration purposes, same-sex unmarried couples will only qualify if they have proof of their partnership in the country of origin.

Netherlands

In the Netherlands, marriage is not limited to persons of different gender. Same-sex marriages are equally valid and can form the basis for immigration with a spouse under the same conditions. In addition, unmarried partners (either mixed or same-sex) or are also entitled to family reunification.

Married couples must submit a legalized marriage certificate. Unmarried partners must provide an official (legalized) document from their home country proving that they are not married (to anyone). Some nationalities, like Japanese and U.S. citizens, can obtain an affidavit to that effect from their embassy in the Netherlands. Unmarried partners must also provide proof of a durable affective relationship. To this end, they must complete a questionnaire that asks how the two partners met, how long they have been in a relationship, and whether their friends and family have been informed about the relationship. The minimum age for family reunification is 21 years.

For dependents who join a partner who is coming to the Netherlands on a work visa (knowledge migrant, intracompany transferee), the processing time is approximately two weeks, whether the dependent travels together with the sponsor or afterwards. For others, the processing time is three months, and additional requirements apply. The sponsor must earn at least the minimum wage and have an employment contract for at least a year. Another (tough) requirement for this group is an integration test, which must be taken by all applicants except those from the European Union/European Economic Area, the United States, Japan, Canada, New Zealand, Australia, and South Korea. The test, which requires a basic knowledge of the Dutch language, must be passed successfully before a visa will be granted.

Peru

In Peru, marriage is defined as the voluntary union of a man and woman celebrated according to the provisions of the Peruvian Civil Code to make a common bond.

On the other hand, a common-law marriage voluntarily carried out and maintained by a man and a woman, free of matrimonial impediment, to achieve similar goals and fulfill the duties of marriage, creates a society of goods that are subject to the regime of conjugal society, provided that this status has lasted at least two continuous years.

Civil union or marriage of same-sex partners is not recognized by Peruvian law. For immigration purposes, Peru does not recognize marriages, partnerships, or relationships between two individuals of the same sex or common-law marriages and civil unions.

Only marriages according to Peruvian civil law and related regulations are recognized for the purposes of obtaining resident visas through family-based proceedings.

Russia

Russia does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes.

South Africa

South African immigration law gives effect to the requirement of its Constitution that a person may not be discriminated against on the basis of his or her sexual orientation. That protection applies whether the person is a foreign national or a South African citizen.

The term “spouse,” for purposes of South African immigration law, describes a person who is in a spousal relationship, be he or she in a marriage, a civil union, or an informal life partnership. Legislation does require, however, that any previous marriage or civil union must have been lawfully terminated. The relationship must be monogamous.

The foreign spouse of a South African citizen may apply to the Department of Home Affairs for a temporary residence visa to accompany his or her South African spouse in South Africa. Confusion prevails at some of the South African embassies about the identity of the correct visa to apply for. It is not the “relative’s visa” but rather a visa issued under § 11(6) of the Immigration Act.

These visas are usually issued for about two years at a time and should be applied for and obtained before traveling to South Africa. The visa may be extended (from within the country), upon application, so long as the spousal relationship still exists. Once the spousal relationship is five years old, the foreign spouse may apply for permanent residence on the basis of the extant relationship.

If the foreign spouse has obtained an offer of employment, he or she may apply to have the visa amended to allow him or her to take up that employment. The intended employer is excused from being required to recruit for a South African worker first, as happens with ordinary work visas.

When a foreign national is moving to South Africa for some lawful purpose, he or she may bring a spouse or partner regardless of that spouse or partner’s gender. The “accompanying spouse” must (principally) prove that the spousal relationship exists. The spouse needs to apply for an extended visitor’s visa, which can be issued for up to three years and can also be extended, upon application. Unfortunately, the “dispensation” allowing a foreign spouse to take up employment in South Africa applies only to the spouses of South African citizens.

Turkey

Turkey does not recognize same-sex marriage or common-law marriage.

United Kingdom

In 2004, same-sex civil partnerships were legalized throughout the United Kingdom (UK) with the passing of the Civil Partnership Act.

In 2013 and 2014, laws legalizing same-sex marriage in England, Wales, and Scotland received Royal Assent. Although Northern Ireland does not presently permit same-sex marriage, following the Republic of Ireland’s approval of same-sex marriage in a referendum in 2015, and in light of recent polls finding that a majority of Northern Irish voters support such rights, it is possible that reform could be on the horizon.

Individuals seeking to come to the UK for work or to study, who are subject to immigration control (i.e., nationals not from the European Economic Area (EEA) or Switzerland), may apply to bring their same-sex spouses or partners as dependents. Requirements vary for different routes within the Points Based System (PBS); however, evidence of the relationship must be submitted with the application. Where the same-sex couple are married (overseas or in the UK), the original marriage certificate is required. Same-sex couples in a common-law marriage relationship must submit original evidence of their relationship and cohabitation covering the last two years before application.

A same-sex spouse or partner may also apply as “family of a settled person” (where the partner or spouse is a British citizen, is settled in the UK, or has asylum or humanitarian protection in the UK).

In the majority of applications to come to the UK on the basis of a same-sex marriage or partnership, the spouse or partner must prove that he or she is 18 years of age or older, in a genuine relationship, not in any other marriage or partnership, not related by blood to the spouse/partner, has sufficient accommodation and maintenance funds, and does not fall under the general grounds for refusal under the Immigration Rules. 

In addition to meeting maintenance requirements, most main applicants and their dependents must pay an Immigration Health Surcharge. In some immigration routes, spouses or partners must provide evidence of meeting a specific level of English language ability.

United States

On June 26, 2013, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA). DOMA defined “marriage” for federal law purposes as between “one man and one woman” and “spouse” as either a husband or wife “of the opposite sex.” As a result of the Supreme Court’s decision, same-sex spouses of U.S. citizens and permanent residents are now treated the same as different-sex spouses at the federal level, and may apply for green cards based on their marriages. Absent fraud or a particular public policy consideration, and as long as the marriage was valid where and when performed, the marriage is valid for U.S. immigration purposes. Moreover, U.S. immigration officials recognize a validly performed same-sex marriage regardless of any anti-marriage equality law or constitutional amendment in a couple’s state of residence (or intended residence) in the United States.

As of press time, same-sex marriages are legal in most but not all states in the United States.

Civil unions, domestic partnerships, and other forms of relationship recognition short of marriage are not accorded the same familial status as marriage under U.S. immigration law. The U.S. Department of State may issue a B-1/2 visa to a “cohabitating partner” of a principal nonimmigrant visa holder, but these only allow the “cohabitating partner” to obtain a six- to twelve-month stay upon entry, whereas the principal nonimmigrant may be on temporary assignment to the United States for several years at a time.

Details with respect to immigrant and nonimmigrant visas are summarized below.

Immigrant visas:

Same-sex spouses are recognized for immigration purposes, provided the marriage was recognized by the state where it was performed. If the party resides in a state that does not recognize the marriage, but it was valid where performed, it will be recognized for immigration purposes.

Same-sex partners or those in a domestic relationship enjoy no immigrant visa benefits. However, they may be able to visit under a B-2 visa for an extended period. If one partner is a U.S. citizen or permanent resident, this would raise the issue of whether the non-U.S. partner is a bona fide nonimmigrant. This might be overcome where the U.S. partner can show that he or she is only in the U.S. temporarily or travels frequently.

Common-law marriages are valid for U.S. immigration purposes if they are recognized by the U.S. state or foreign country where they occur. Since the place of celebration generally determines the validity of the marriage, it often is necessary to check local laws.

Nonimmigrant visas:

Nonimmigrant options for partners who are not legally married:

Same-sex or different-sex partners who are not legally married, whether or not they are in a legally recognized domestic partnership, may qualify for a B-2 visitor’s visa to accompany a nonimmigrant partner, provided they can demonstrate the normally required intent not to immigrate or overstay in the United States. The primary purpose of coming to the United States must be to accompany the significant other who has already demonstrated nonimmigrant intent in obtaining his or her own visa, whether it be as a visitor, student, temporary worker, or other nonimmigrant classification. In making the assessment, U.S. immigration authorities will consider the current circumstances and prospects in the home country upon return, as well as the strength of his or her relationship with the “principal” alien and the principal’s own ties abroad.

The principal applicant may be exempt from having to document nonimmigrant intent under an H or L visa or from having to document a residence abroad under an A, E, G, I, O, or R visa classification. The accompanying B-2 visitor partner, however, must show nonimmigrant intent and a residence abroad, whether it is his or her own address or that of a relative or friend.

Nonimmigrant options for same-sex spouses:

Same-sex spouses or partners may enjoy the full benefits of a K-1 fiancé(e) visa or as a derivative of other visa classifications such as B-2 visitor or H-4 spouse of temporary worker. They face the issue of immigrant intent much the same as a domestic partner. As with immigrant marriages, the marriage must have been recognized in the jurisdiction where performed. Whether it is recognized in the jurisdiction where the party resides is not determinative.