If you intend to apply for a Partner visa (Subclass 820/801 or Subclass 309/100) to Australia based on a de facto relationship with your Australian partner, you will generally need to satisfy the Department of Home Affairs (DHA) that you have been in a de facto relationship for at least 12 months before the application is made.
This article explains what you would need to demonstrate to satisfy that requirement and reviews circumstances in which it may be waived.
What is a De Facto Relationship?
Pursuant to Australian Immigration Law, a person is in a de facto relationship with another person if they:
- are not married to each other; have a mutual commitment to a shared life to the exclusion of all others;
- are in a genuine and continuing relationship;
- live together or do not live separately and apart on a permanent basis; and
- are not related by family.
Genuineness of Relationship
At the time of making your application, you will need to disclose the history of your relationship to the DHA.
The history of a relationship is normally evidenced by written statements of the couple together with Statutory Declarations of their family and friends.
It is important that your disclosed history of relationship is based on facts and is supported by available evidence proving the genuineness of your relationship.
Genuineness of relationship of a couple, including their mutual commitment to each other is considered by the DHA based on the following aspects:
1) Financial aspects of the relationship.
As an example, financial aspects of the relationship can be evidenced by:
- joint ownership of the house or joint lease;
- joint liabilities;
- joint bank accounts; mutual wills.
The DHA generally expects to see the evidence of the shared finances of the couple.
Based on the practice, some couples have difficulty in providing sufficient evidence to prove this aspect of their relationship, which may potentially result in visa refusal.
For example, some couples may be reliant on a single income and may have no need in opening a joint bank account of making joint contributions to their purchases or expenses.
An experienced Sydney Immigration Lawyer or a Migration Agent may mitigate your risks by preparing a detailed submission to the DHA based on your circumstances and Immigration Law, which would explain particularities of your financial arrangements.
2) Social aspects of the relationship
A couple is generally expected to be accepted and recognised as a couple socially. That can be evidenced by:
- statements by friends and work colleagues;
- joint invitations to social events (e.g., birthday parties, weddings);
- joint travel or joint participation in sporting, social or cultural activities.
3) The nature of the household
When assessing this aspect, the DHA will generally consider a couple’s living arrangements, their shared responsibilities within the home, their joint responsibility for care and support of any children, their joint living expenses.
4) The nature of the couple’s commitment to each other
Considering that this aspect of relationship is hard to prove by any evidence, the DHA generally considers the couple’s statements and any available evidence of mutual support and future plans of the couple.
If the couple was separated for any period of time, they should be able to show evidence that they maintained their contact while apart (i.e., itemised telephone accounts, printouts of Skype calls, Facebook messenger, etc.).
Requirement to Lve Together
Although it is generally expected that de facto couples should have lived together for 12 months, living together as a criterion is considered by the DHA on case-by-case basis.
Depending on the circumstances of a couple, it is not always possible to live together for the entire 12-months period. For example, the couple’s work commitments, visa restrictions, financial and other circumstances may dictate their decision to live separately for a period of time.
What matters is that the couple has, at some point of time, decided to live together, has done so for some extent of time, but could not continue doing so due to some external circumstances. Although they could have lived separately on a temporary basis, they would still need to prove that they have been in a de facto relationship during the period of their temporary separation.
The evidence that the couple would need to provide to the DHA should prove their decision to commence living together, that they have physically lived together for some time and that they are not living separately and apart on a permanent basis.
Exemptions from One-year Requirement
All de facto partner visa applicants must demonstrate that they have been in a de facto relationship for at least 12 months prior to the application date.
That means that the applicants must show that they have satisfied the four aspects of the relationship as indicated above for at least 12 months prior to making an application. If an applicant cannot satisfy the DHA, their application may be refused.
The one-year relationship requirement can be waived in any of the following circumstances:
- If there are compelling and compassionate circumstances for the grant of the visa, for example, there is a child of the relationship;
- the relationship is registered under a law of a state or territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 (Cth) as a de facto relationship;
- the applicant’s partner is, or was the holder of a permanent humanitarian visa and, before the humanitarian visa was granted, was in a de facto relationship with the applicant that was declared to the DHA at the time; or
- the applicant’s partner is an applicant for a permanent humanitarian visa.
Most often, to waive the one-year requirement, the applicants choose to register their de facto relationship in Australia.
Currently, it is possible to register a relationship in South Australia, the Australian Capital Territory, New South Wales, Queensland, Tasmania and Victoria.
However, please note that registration of your relationship does not release you from an obligation to prove the genuineness of your relationship at the time of your visa application. You will still need to prove that your relationship satisfies four aspects of a de facto relationship as indicated above.
If you intend to lodge a Partner visa application, Solicitors and Migration Agents of Pavuk Legal may advise you on your eligibility and assist you in preparing a visa application based on your particular circumstances and increase your chances in obtaining a visa to Australia.
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