Relationships come in many shapes and sizes, so how does the Department of Home Affairs (DOHA) define de facto relationships for the purposes of applying for a visa?
De facto relationships, whether between partners of the same sex or of different sex must be able to meet the following criteria to be considered as de facto partners:
- Are both at least 18 years of age
- Are not married to each other
- Have a mutual commitment to a shared life to the exclusion of all others
- Have a relationship that is genuine and continuing
- Live together or do not live separately and apart on a permanent basis
- Cannot be related by family
The above criteria must be met regardless of the type of visa and whether or not the applicant is a primary or secondary applicant.
Both the applicant and their partner must be at least 18 years of age at the time of the visa application.
The couple cannot be married to each other if they are in a de facto relationship. There may be situations where one partner or more is married to someone else, that is, the ex-partner. This doesn’t mean that the de facto relationship does not exist. The DOHA will continue to recognise the relationship so long as the de facto couple is in a mutually exclusive, genuine and continuing relationship.
Why? A couple may genuinely be in a relationship, but due to other constraints, such as the length of legal proceedings, result in the situation where a partner is married to someone outside the relationship. Of course in such situations it is important that the de facto partners are able to provide strong evidence of their relationship, as well as evidence of the previous relationship has ended, even if the marriage has not been officially dissolved. Evidence may come in the form of legal documents from divorce proceedings or an annulment. This however does not mean that you have to prove you have filled for a divorce from your ex because for many reasons it may not be possible to do so.
Mutually exclusive relationship
Mutually exclusive means that both partners in the relationship are committed to each other to the exclusion of all others; the partners in the de facto relationship cannot have another concurrent spouse or de facto partner. It may seem contradictory to the previous paragraph, but this is about the relationship and not if a person is legally married. In the situation described above, a de facto couple who is mutually exclusive with each other and had no real relationship with their legal spouse are considered to be a de facto couple.
On the flipside, whilst a person may have legally ended a relationship with a person outside of the de facto relationship through divorce or annulment, it does not necessarily mean that the relationship has ended. The de facto relationship would not be mutually exclusive due to the ongoing presence of a relationship with a person outside the relationship and thus, cannot be considered to be de facto partners. The DOHA may choose to investigate if something does not add up and it is on the de facto couple to provide evidence to support that their relationship is mutually exclusive.
Genuine and continuing relationship
The DOHA will look at the partner application as a whole and especially take into account the four main aspects of a relationship, as these aspects were defined in migration law to help identify a couple that have a real commitment to a life together.
The four main aspects of a relationship are:
- Financial aspects of the relationship
- Nature of the household
- Social aspects of the relationship
- Nature of the commitment
It is important that the relationship is genuine and that it is ongoing and will continue for the foreseeable future. This can be assessed through the evidence given for the application as well as through statutory declarations by supporting witnesses, interviews with the applicant and sponsor and so on.
Living together or not living separately and apart on a permanent basis
Why does this matter? A couple who are genuinely committed to each other should be building a life with each other. The DOHA will consider the following factors:
- Whether a couple live separately and apart
- Whether the separation is on a permanent or temporary basis
If the couple are living separately, the separation should be only temporary.
Worry not, with who varied cultures are and how globally mobile the world is becoming, it is understood that a couple simply may not have had the opportunity to live together before, and the DOHA will not penalise a de facto couple if they:
- Never lived together before the visa application was made
- Were not living together at the time the application was made
- Were not living together at the time the application is decided.
In the time that a couple has lived together, any evidence during this period of the strength, unity and commitment (think “four main aspects of the relationship”) would greatly affect how the DOHA views the application.
A de facto couple who have never lived together before and are unable to give evidence that they intend to live together in the future would now be able to meet this requirement. It should be noted that there is no timeframe by which the DOHA expects a couple who is separated to be living together.
Not related by family
The de facto partners cannot have the following relationships:
- One is the child (including adopted child) of the other
- One is another descendent of the other (even if the relationship is through an adoptive parent)
- They have a parent in common (who may be an adoptive parent of either or both of them)
It can be quite confusing as to how to provide proof on a relationship, especially if you need to establish your de facto relationship has existed for at least 12 months and you are not living together. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists on how to evidence your de facto relationship.