The requirements for de facto relationships, as defined by the Department of Immigration vary depending on the visa that you are applying for.
Criteria applying to all de facto relationships
Broadly, de facto relationships (inclusive of same sex relationships) are where the couple:
- 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
- Are not 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 to be in a de facto relationship. They may however be married to someone else. It is necessary in such a situation to demonstrate that the de facto couple is in a mutually exclusive, genuine and continuing relationship.
It must be evidenced that the person who is married to someone else has genuinely concluded that relationship, even if the marriage has not yet been dissolved. Evidence may come in the form of legal documents from divorce proceedings or an annulment.
Mutually exclusive relationship
The partners in the de facto relationship cannot have another concurrent spouse or de facto partner. Again the focus is on the relationship; as above, if a person is undergoing divorce proceedings and are genuinely in a mutually exclusive and ongoing relationship with their de facto partner, they will still be able to satisfy requirements.
Vice versa, 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. On the discretion of the DIBP, further evidence may be requested to demonstrate that the de facto relationship is mutually exclusive.
Genuine and continuing relationship
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 forth.
Living together or not living separately and apart on a permanent basis
If the couple are living separately, the separation should be only temporary. If the de facto couple has never lived together before and are unable to give evidence that they intend to live together in the future, they will not be able to meet this requirement.
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)
Criteria dependent on visa subclass
Period of relationship
The de facto relationship must have existed for at least 12 month before the time of application for only the following visas:
- Any permanent visa
- General Skilled Migration (GSM) visa (subclasses 189/190/476/485/489/887)
- Partner visa (subclasses 309/820)
- Student visa (subclass 500)
- Business Skills (Provisional) Visa (subclasses 160/161/162/163/164/165/188)
De facto relationship requirements for other visas are not required to fulfil a prescribed period of relationship requirement. For example, the Temporary Work (Skilled) visa (subclass 482) has no minimum 12 months requirement for a de facto relationship.
The minimum 12 month de facto relationship requirement does not require the couple to have been cohabiting for 12 months, but that their relationship meets the basic criteria for a de facto relationship for at least 12 months – minimum age, not married, mutually exclusive, genuine and ongoing, not living apart on a permanent basis and not related by family.
If compelling and compassionate circumstances can be produced, the minimum 12 months de facto relationship may be waived. Compassionate and compelling circumstances may include there being a dependent child from the relationship, if the relationship is same sex and is illegal in the applicant’s country, if a same sex couple has legally married overseas. A sponsor or applicant being pregnant at the time of application is not considered compelling and compassionate circumstances unless there are exceptional or unique circumstances relating to the pregnancy .
Alternatively, if the relationship is legally registered such as the NSW Relationship Registry, the couple may be exempt from the minimum 12 month requirement. The certificate for registration must be provided; evidence of having made an application is insufficient when the case officer asks for it however it is possible to lodge the application as long as the signing process has been completed. Not all states are accepted under this provision.
The 12 month requirement also does not apply if the applicant’s partner previously held, is, or has applied for a permanent humanitarian visa.
4 main aspects of the relationship
In assessing the relationship, the DIBP assesses these 4 main aspects
- Financial aspects of the relationship
- Nature of the household
- Social aspects of the relationship
- Nature of the commitment
These 4 main aspects need to be fulfilled when applying for the following partner visas:
- Partner (Provisional) visa (subclass 309)
- Partner (Migrant) visa (subclass 100)
- Partner visa (subclasses 820/801)
Fulfilling all 4 main aspects of the relationship are a mandatory requirement for the above visas but may be used in assessing the de facto relationship for other visas.
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 are not cohabiting. Speaking to an experience migration agent early on can not only help you understand what to provide in documentation, but give you an early start on collecting the documents you will need.