3 November 2024
In the context of a Partner Visa application, a defacto relationship is where two people live together without being legally married.
To meet the eligibility requirements for an Australian partner visa, the applicants can either be married or in a defacto relationship. This applies for both the Onshore 820 visa as well as the Offshore 309 visa. The relationship must demonstrate specific criteria set out in the Migration Act, including aspects such as financial interdependence, mutual commitment, and a shared household or cohabitation.
The Definition of a Defacto Relationship in Australian Law
In Australian law, a defacto relationship is defined as a relationship between two people who live together on a genuine domestic basis but are not married to each other.
The Migration Act 1958, Section 5CB defines a de facto relationship as one where two people, who are not legally married or related by family, have a mutual commitment to a shared life, live together (or do not live apart permanently), and maintain a genuine, continuing relationship.
This definition applies regardless of gender and includes both opposite-sex and same-sex couples.
Defacto relationships are also defined in the Family Law Act. Section 4A details similar considerations: the duration of the relationship, the nature and extent of shared residence, financial arrangements, and public perception as a couple.
Evidence Required With Your Partner Visa Application
Applicants need to provide clear evidence that demonstrates a genuine and committed relationship. This evidence is typically spread over a few different aspects of the relationship as follows:
- Financial Arrangements:
- Shared bank accounts or financial commitments, like joint loans or credit cards
- Evidence of shared expenses, such as household bills or joint purchases
- Documentation of significant financial support or interdependence
- Social Recognition:
- Statutory declarations or letters from family, friends, or colleagues confirming the relationship
- Photos or records of social events attended as a couple, including holidays or celebrations
- Invitations, joint social memberships etc.
- Cohabitation Evidence:
- Joint rental agreements, mortgage documents, or evidence of cohabiting at the same address
- Utility bills or other mail addressed to both at the same residence
- Statements or records showing shared day-to-day responsibilities
- Commitment to the Relationship:
- Plans for a shared future, such as joint travel plans or long-term goals
- Significant shared events, like anniversaries or life milestones
- Personal correspondence showing mutual support and commitment over time
How long does the relationship need to have existed?
As a starting point, a defacto relationship needs to have existed for 12 months prior to lodging the application. This duration can be understood to demonstrate a level of stability and commitment that the Department of Home Affairs considers necessary for a genuine partnership.
However, this one-year requirement is not always strictly applied.
There are certain exemptions to the 12-month rule, including:
Registration of the Relationship
A registered relationship can serve as evidence of commitment, potentially bypassing the need for the 12-month cohabitation requirement.
In Australia, couples can register their relationships in the following states and territories:
- New South Wales
- Victoria
- Queensland
- South Australia
- Tasmania
- Australian Capital Territory
Only Western Australia and the Northern Territory do not currently offer relationship registration schemes.
The Department of Home Affairs relies on Regulation 2.03A(5) of the Migration Regulations 1994 to allow de facto couples who have registered their relationship to meet eligibility criteria, even if their relationship has been for less than 12 months. This regulation specifies that the 12-month relationship requirement does not apply if the de facto relationship is registered under a prescribed law of an Australian state or territory.
Compelling Circumstances
Compelling Circumstances: Certain exceptional situations—such as having a child together—may also allow couples to qualify without meeting the 12-month threshold in specific circumstances. Evidence of significant joint commitments, like a shared mortgage or ongoing cohabitation despite unique challenges, can support these claims.
Schedule 3 of the Migration Regulations 1994 outlines additional criteria for applicants who do not hold a substantive visa at the time of application. While Schedule 3 primarily addresses visa status issues, it also allows for waivers of certain criteria if there are compelling reasons.
This means that if an applicant does not meet the standard requirements, such as the 12-month cohabitation period, they may still be considered for a visa if they can demonstrate compelling circumstances.
Challenges Applicants Face in Demonstrating a defacto Relationship
Applicants often face several challenges in demonstrating their relationship. These hardships generally are in proportion to the shortness of the relationship, ie the shorter the relationship, the less documentation that may be available to demonstrate it.
Some common hurdles couples encounter:
- Limited Joint Financial Records: Couples who have not merged their finances may struggle to show evidence of shared financial responsibilities. This is particularly common for younger couples or those who prefer to keep separate accounts.
- Difficulty in Providing Cohabitation Evidence: Some couples may not have lived together continuously due to work, study, or visa restrictions, which can make it challenging to prove cohabitation. In such cases, applicants need to present alternative evidence, like regular travel records or correspondence that shows ongoing contact. See our article on long distance relationships and partner visas.
- Lack of Social Recognition: Proving social recognition of the relationship can be challenging, especially for private couples or those who haven’t disclosed their relationship widely to friends and family. Additionally, couples from cultural backgrounds where defacto relationships are less common may find it harder to secure supporting statements from family or community members.
- Inconsistent Documentation: For some couples, inconsistent or sporadic documentation—such as different addresses on official documents or gaps in financial records—can raise questions about the legitimacy of the relationship.
Applicants may need to provide a variety of documents to demonstrate commitment and continuity in their relationship, even if certain conventional forms of evidence are limited.
One thing that we will assist you with is reviewing all evidence, and suggesting alternatives where there may be gaps. If the relationship is genuine then we will work with you to find appropriate evidence for your application.
Tips for Strengthening Your defacto Partner Visa Application
Here are some practical tips to help make your application as compelling as possible:
Organise Financial Evidence
Consolidate bank statements, shared bills, or joint financial accounts to clearly show financial interdependence. If joint accounts are limited, consider sharing expenses or creating a joint savings plan.
Build Cohabitation Documentation
If you live together, gather rental agreements, utility bills, and mail addressed to both of you at the same residence. Regularly updating your address on official documents can also strengthen this evidence.
Demonstrate Social Recognition
Collect letters or statutory declarations from friends, family, and colleagues who can confirm your relationship. Photos of joint activities, holidays, and family gatherings also help illustrate your social life as a couple.
Highlight Future Plans
Include evidence of shared future plans, such as travel bookings, life goals, or discussions around long-term commitments, showing a mutual commitment beyond the present.
Consider Relationship Registration
In states where it’s possible, registering your defacto relationship can bypass the 12-month cohabitation requirement and provide official recognition of your relationship.
Wrapping it up
Establishing a defacto relationship for a partner visa requires careful attention to specific criteria and strong documentation to demonstrate commitment, cohabitation, and shared responsibilities. From gathering financial records to securing social recognition, each element strengthens your application and builds a clear case for your relationship.
If you need assistance gathering or organising evidence for your partner visa application, then book in a consultation with a PocketLegal team member. Our team can help ensure your application meets the necessary requirements and is as strong as possible.
