What is a de facto partner according to Australian immigration law?

One of the most confusing aspects of applying for a partner visa is what will satisfy the definition of a de facto when it comes to applying for a visa to Australia.

The Migration Act 1958 (Act) at Section 5CB provides the following definition:

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.

De facto relationships can be between partners of the same sex or different sex, and they must meet the following criteria:

Be at least 18 years of age
Not be legally married to each other
Have a relationship that is genuine and continuing
Have a mutual commitment to a shared life to the exclusion of all others
Live together or do not live separately and apart on a permanent basis
Cannot be related by family

Can I apply for a de facto visa if I am still married?

Yes, you can apply for a de facto visa if you are still married to another person subject to proving the other requirements.

How long do I have to be in a de facto relationship before I can apply for a visa?

You must prove you have lived in a genuine de facto relationship for at least twelve (12) months before you can apply for a visa.

Are there any exceptions to the 12-month requirement of living together?

Yes, if you register your relationship and prove your ongoing commitment you do not have to show that you have been in a de facto relationship for the 12 months.

You can register your relationship in the following States and Territories of Australia:

New South Wales – https://www.nsw.gov.au/births-deaths-marriages
Victoria – https://www.bdm.vic.gov.au/
Queensland – https://www.qld.gov.au/law/births-deaths-marriages-and-divorces/marriage-weddings-and-civil-partnerships
South Australia – https://www.sa.gov.au/topics/family-and-community/births-deaths-and-marriages/marriages-and-relationships/register
Tasmania – https://www.justice.tas.gov.au/bdm/home
Australian Capital Territory – https://www.accesscanberra.act.gov.au/s/article/civil-union-registration-tab-overview

You cannot register a relationship in Western Australia or the Northern Territory.

Can I include children in my application?

Yes, you can include a dependent child in your application.

To be a dependent child they must be:

your or your partner’s child from a current or previous relationship
not married, engaged or in a de facto relationship
wholly or substantially reliant on you for their basic needs of food, clothing and shelter
under 18 years old

You can apply also to include a dependent child if they are over 18 years of age provided that they must be:

dependent on you more than any other person for their basic needs of food, clothing and shelter, or
unable to work to support themselves because they have a disability that totally or partially affects their bodily or mental functions

If they are applying for a visa other than a protection, refugee and humanitarian or temporary safe haven visa, they are dependent on you if they wholly or substantially rely on you more than any other person for their basic needs of food, clothing and shelter.

If they are applying for a protection, refugee and humanitarian or temporary safe haven visa, they are dependent on you if they wholly or substantially rely on you for financial, physical or psychological support.

What documents do I need to have to prove my de facto relationship?

The Department of Home Affairs on their website indicate the following documents can be used to support your application:

Finances

joint mortgage or lease documents
joint loan documents for major assets like homes, cars or major appliances
joint bank account statements
household bills in both names

Your household

a statement about how you share housework
household bills in both names
mail or emails addressed to you both
documents that show joint responsibility for children
documents that prove your living arrangements

Social matters

joint invitations or evidence you go out together
proof you have friends in common
proof you have told government, public or commercial bodies about your relationship
proof you do joint sporting, cultural or social activities together
proof you travel together

Commitment

proof you have knowledge of each other’s background, family situation or other personal details.
proof you have combined your personal matters
the terms of your wills
proof you stay in touch when apart

How can the FC Lawyers help you as a de facto partner?

Our team of experts including an Accredited Specialist and Migration Agents with over 25 years of experience have assisted hundreds of partner visa applicants both offshore and in Australia.

Don’t risk your future without speaking to one of our expert team.

Contact our team today to discuss your migration options.