De facto for the purpose of getting a partner visa to Australia

One of the questions we are asked most often is “do I qualify as a de facto to get a partner visa to Australia?”

Firstly, you must have a sponsor who is an Australian citizen or permanent resident, or an eligible New Zealand citizen. An eligible New Zealand citizen is a New Zealand citizen, who at the time of their last entry to Australia, would have met their health and character checks, and:

• held a Subclass 444 (Special Category) visa on 26 February 2001; or
• held a Subclass 444 (Special Category) visa that was in force for at least one year in the two years before 26 February 2001; or
• has a certificate, issued under the Social Security Act 1991, that states the citizen, for the purposes of the Social Security Act, was residing in Australia on a particular date (Centrelink stopped accepting applications for these certifications on 26 February 2004).

There are three visas that you may be able to apply for if you are in a de facto relationship:

• in Australia, a partner subclass 820/801
• outside Australia, a partner subclass 309/100
• outside Australia, a fiancé subclass 300.

SUBCLASS 820/801 – PARTNER VISA (TEMPORARY) AND PARTNER VISA (PERMANENT)

Partner visa in Australia subclass 820/801 allows the partner or spouse of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen to live in Australia. You apply for the temporary and the permanent partner visas together.

SUBCLASS 309/100 – PARTNER (PROVISIONAL) VISA AND PARTNER (MIGRANT) VISA

Partner visa outside Australia allows the partner or spouse of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen to live in Australia. You apply for the temporary and the permanent partner visas together.

SUBCLASS 300 – PROSPECTIVE MARRIAGE VISA

This visa lets you come to Australia to marry your prospective spouse and then apply for a Partner visa. You will be allowed 9 months from the date of the grant of the visa to remain in Australia and marry your partner then apply for a partner visa.

DE FACTO PARTNER REQUIREMENTS

You must be able to satisfy the following criteria:

• your partner and yourself must be at least 18 years of age;
• you must be in a de facto relationship with your partner who is an Australian citizen or permanent resident, or an eligible New Zealand citizen;
• your partner must be able to sponsor you (certain people are prohibited from being approved as a sponsor);
• your partner and yourself our partner must meet a character requirement; and
• you must also meet health and character requirements.

HOW DO I SATISFY THE REQUIREMENTS OF BEING A DE FACTO PARTNER?

The Department of Home Affairs (DoHA) must assess whether your relationship meets the prescribed definition of a ‘de facto partner’ in accordance with the Migration Act 1958 which 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)).

(3)  The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Definition

(4)  For the purposes of paragraph (2)(d), 2 persons are related by family if:

(a)  one is the child (including an adopted child) of the other; or

(b)  one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

(c)  they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

It is important to be aware that the meaning of a de facto relationship for purpose of migration law and obtaining a visa will not necessarily equate to the ordinary usage of this term or how it is defined in other laws or countries.

In essence you must prove that:

• you and your partner have a mutual commitment to a shared life to the exclusion of all others;
• your relationship is genuine and continuing relationship;
• you and your partner live together, or you do not live separately and apart on a permanent basis; and
• you and your partner are not related by family.

HOW LONG DO WE HAVE TO BE IN A DE FACTO RELATIONSHIP FOR?

Generally, you must show that you have lived with your partner, or at least not apart on a permanent basis, for at least 12 months.

This 12-month rule applies to most permanent and provisional Australian visas. For temporary visas, it is possible to apply with less time living together.

There are some exceptions to the 12-month rule. They are:

• if you have registered your relationship with an Australian State or Territory government (Queensland, Tasmania, Victoria, New South Wales, and the Australian Capital Territory are the states and territories that enable relationships to be registered in Australia); or
• there is a dependent child of the relationship; or
• you are not permitted by law in your home country to live with your partner.

WHAT INFORMATION DO I NEED TO PROVE WE HAVE BEEN LIVING TOGETHER FOR 12 MONTHS?

The DoHA will require evidence to prove the following aspects of your de facto relationship:

• Financial – joint you prove ownership of major assets, joint liabilities, sharing of your financial assets
• Social – can your relationship be supported by others as being genuine, including taking part in social events and other activities
• Household – can you show your living arrangements including cooking, household chores, support of children indicate a joint and shared relationship
• Your commitment – the length and history of your relationship including the fact you are committed to each other for the long

It is essential you provide supporting documentation with your application.

The DoHA understands that not all relationships are the same and have the same characteristics due to cultural, religious, or even work commitments. It is important you properly address these issues.

HOW CAN WE HELP?

Our expert team at FC Lawyers has acted for many partners who have had to prove their de facto status in often difficult circumstances. Don’t risk getting your visa refused and losing your application fee. Contact our team of Registered Migration Agents to discuss your needs.