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Verdict opens another set of imponderables

There is something special about marriage ceremonies.

Two people make a commitment to each other to spend the rest of their lives together.

People often view marriage vows as a sentiment made in heaven and lived on earth.

Typically, weddings are beautiful events. There is an air of hope and continuity of tradition and the way of life, as we know it.

There are also people who dispense with these and believe in other ways to be together, referred to as ‘being in a partnership.’

Immigration Zealand (INZ) is tasked with assessing partnerships and marriages for granting visas. The test that partnerships and marriages must pass is whether the couple is living together in a genuine and stable relationship. The meaning of ’stable’ and ’genuine’ are subject to interpretation.

Genuine relationship

If the couple is living together, this goes a long way towards proving the relationship is stable and genuine, however; this is problematic to a significant percentage of applicants who do not believe in living together before marriage.

Therefore, we get situations wherein shortly after marriage people apply for a partnership-based visa. These are declined because the couple has not lived together for very long.

INZ addressed this problem by issuing overseas partners visitor visas to allow couples to live together for a longer time so that they can eventually comply with the ‘stable and genuine relationship’ requirement and then apply for residence, based on their partnership.

This compromise is only a partial solution to the problem and is not entirely satisfactory.

Non-traditional relationship

Many couples are in fact stable and genuine; that they did not live together before marriage should not exclude them from partnership-based visa. Many of these couples are equally stable and genuine as couples living together prior to marriage.

INZ should be able to recognise couples who, because of their culture, tradition and religion, do not live together before marriage. It should be equipped to recognise partnerships that are not based on traditions.

The recent decision from the Supreme Court is an example of one such non-traditional partnership.

The case involved a New Zealand citizen, whose husband applied for Residence Visa based on their partnership. During their three years of marriage, she gave birth to two children. INZ declined the Residence Visa Application, stating that the relationship was not stable and genuine and that the applicant had provided ‘false and misleading information.’

The Supreme Court disagreed and ruled that although the marriage may not have been ideal, but bore the hallmarks of a stable and genuine relationship. They lived together, shared childcare obligations and financial responsibilities. The Court squashed the decision of INZ and allowed the appeal of the plaintiff.

New assessment method

The decision of the Supreme Court introduced another way in which stable and genuine relationship can be established. For many years, INZ relied on ‘stability and genuineness’ to decide whether a marriage or a partnership was genuine, making it the basis for granting a visa to enable a ‘partner’ to join his or her sponsor in New Zealand.

The test obliged applicants to provide a great deal of personal and intimate information about their relationship, the time they have spent together, the way they communicated with each other, the authenticity of their marriage certificate, photographs, bank statements, remittances and so on. Now the stable and genuine test is open to new interpretations.

The implications of the decision of Supreme Court are still being studied but it is likely to have a major impact on the family and spouse policy of INZ.

This end of the partnership spectrum is becoming more acceptable with acknowledgement of different ways of being together.

Points to ponder

However, will this also be true of the other end of the spectrum, where traditional values exist and living together cannot commence until after marriage?

Will Immigration New Zealand share this view; will anything change on the policy front?

Will these developments create a new norm? Is the traditional set up losing significance? Where does this leave the off shore applicants who still operate under the traditional values?

We will watch the changing landscape with interest.

Kamil Lakshman is a Lawyer & Principal of Wellington based law firm Idesi Legal Limited. She can be contacted on (04) 4616018 or 021-1598803. Email: kamil.lakshman@idesilegal.co.nz; The opinions expressed in her article above are her own and not that of Idesi Legal Limited or the New Zealand Law Society, or its Wellington Branch, or its affiliated bodies and committees or Indian Newslink. Readers can send their comments (names can be withheld from publication on request) also to editor@indiannewslink.co.nz

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