A de facto visa can either be a Partner Visa Subclass 820/801 or 309/100. Although the term ‘de facto visa’ is thrown around a lot, and you may have even heard ‘Spouse Visa’ or ‘Marriage Visa’ the type of visa people referring to in Australia and for Australian immigration purposes, is just what’s otherwise known as a Partner Visa. Throughout this blog I’ll be using the term de facto visa and Partner visa interchangeably, but it’s all referring to the same type of visa (a Partner visa).
Whether you’re applying for a Partner Visa on the basis of being in a de facto relationship or Spousal relationship can however be different.
In this blog, I’m going to talk about the requirements to demonstrate that you are in a ‘de facto’ Relationship.
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What are the requirements for a de facto Visa
So what does it mean to be in a de facto relationship?
There’s a really huge (critical actually) difference here between couple’s who are in a relationship or just dating, versus couples who are in a de facto relationship. Not only do you need to demonstrate that you and your partner are in a de facto relationship, but you also need to demonstrate that your de facto relationship has existed for at least 12 months before the application is lodged.
This is also known as the ‘12 month rule’. It’s really important to stress that the 12 month rule starts from the time your de facto relationship began. Not from when you and your partner started dating.
What is the definition of ‘De facto’ for Partner Visa purposes?
The department assesses ‘De facto’ in accordance with the Migration Act 1958. The Migration Act states:
5CB De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
What evidence do I need for my de facto visa?
The Department makes an assessment of your relationship against what’s called the ‘Four Pillars of Relationship’
That is, the financial aspects of your relationship, the nature of your household, the social aspects and your commitment to one another. There is evidence that you must provide across all four pillars. If you’re not familiar with this, then I recommend reading my blog ‘4 Pillars of Relationship’.
It’s important that you have enough evidence across these four categories to demonstrate that you are in fact in a genuine and continuing de facto relationship.
During your Evidence Planning Session with me, we will go through the background of your relationship and make sure you and your partner have enough evidence around demonstrating you are a de facto couple. And if you don’t, this is something we can chat about during the evidence planning session.
What if you don’t have 12 months of being in a de facto relationship?
If you and your partner have not accumulated 12 months or more in your de facto relationship, then you may not meet the criteria for lodging a de facto Visa. There are some exceptions to the 12 month rule, including where you able to register a relationship certificate. Depending on which state/territory you might live in inside Australia, you may be able to register a relationship certificate. For example, it is possible to register a relationship certificate (or otherwise known as civil partnership) in the state of Queensland.
If you are able to register a relationship certificate, then the 12 month rule is waived.
We would have been in a relationship for 12 months just after the visa is lodged
Timing is everything when it comes to Partner Visas. There are certain ‘time of application’ criteria that must be met when you lodge the Partner Visa, and then certain ‘time of decision’ criteria.
Establishing that you are in a de facto relationship for 12 months before the application is lodged, must be established before you lodge your de facto Visa. So it’s not enough if you have accumulated 11 months in your de facto relationship. Unless an exemption applies to you you’re running the risk of a refusal if you’re not sure that you’re de facto relationship has existed for at least 12 months before you submit your Partner Visa.
Can I lodge a de facto visa if we haven’t been living together for 12 months?
It is possible to establish a de facto relationship without living together, however a word of caution here – it does become more difficult.
Immigration policy states that you must be living together OR you are not living separately and apart on a permanent basis. In situations where a couple is wanting to lodge a de facto visa, but they haven’t lived together the evidentiary threshold becomes higher.
I’ve seen a lot of cases where a couple isn’t living together when the Partner Visa is lodged. For example, for some couples this is due to cultural or religious reasons, for others it might be because of work commitments. No matter the reason, it’s really important to address the legislation around not living apart on a permanent basis. This is where you might find it beneficial to engage the services of a Migration Agent to assist you with your application.
Can I lodge a de facto visa if I’m still married to someone else?
Yes, it’s possible. However, it might not be possible to register a relationship certificate if you are still married.
You might want to consider finalising your divorce prior to lodging your de facto visa, or at a minimum being 100% certain that you meet the 12 month rule for being in a de facto relationship if you are unable to register a relationship certificate.
Where to from here?
Knowing whether or not you meet the criteria for a de facto visa is key. Especially around establishing a de facto relationship and making sure that the information you are providing around the commencement of your de facto relationship is substantiated by supporting evidence. This is exactly why we have a tailored evidence planning session just for you – because we know that your application is going to look different to someone else’s. It’s also critical that you can establish that you meet the legal criteria for a de facto visa which is again what we assess during the evidence planning session, and then again through the review.
We are big advocates for couple’s DIY’ing their Partner Visas where it’s safe to do so. If you want to learn more, reach out to me and we can chat about how our team can help you with your Partner Visa journey.
IMPORTANT: Please note, this does not constitute Immigration advice. Always seek advice from a Registered Migration Agent before applying for an Australian Visa. Migration Law is constantly changing. This information is accurate only at the time of publication.
