Registering a Relationship for a De Facto Visa
A partner visa allows an Australian citizen, Australia permanent resident, or eligible New Zealand citizen to sponsor their spouse or de facto partner to live in Australia. This process is relatively straightforward for married couples as long as the marriage is recognised in Australia, which now includes legally married same-sex couples. De facto couples, by contrast, must demonstrate the bona fides of their relationship to qualify for a partner visa. This article outlines how registering a relationship can assist a couple to demonstrate that they are in a genuine de facto relationship for the purposes of seeking a partner visa.
What is a De Facto Relationship?
A de facto relationship is defined by the Family Law Act 1975 as a relationship between two people who are “living together as a couple on a genuine domestic basis” (s 4AA). This definition is inclusive of people of any gender, and as such LGBTQI couples are able to satisfy the requirement of a de facto relationship.
How to Establish a De Facto Relationship for a Partner Visa
For the purposes of a partner visa, the law recognises certain criteria as being indicative of a genuine de facto relationship. The duration of the relationship is of particular importance, with a relationship of 12 months generally considered the minimum period to establish a de facto relationship. In addition, how long the couple has co-habited will be considered, as will the sexual relationship between the couple, the interdependence of financial arrangements and ownership of property. Couples will also be asked for evidence of factors such as the care and support of children, contributions to household duties, and a common commitment to a shared future. An additional important factor is whether the relationship is recognised by friends, family and the community.
Registering a relationship
A simpler approach to gaining recognition of a de facto relationship is registering the relationship with the relevant state authority. In New South Wales, Victoria, Queensland, Tasmania, South Australia and the Australian Capital Territory a couple can register their de facto relationship. Once registered, a certificate can be issued for the de facto relationship, which is similar to a marriage certificate.
Registration is simple, low cost, and relatively quick, involving little more than completing a form and providing supporting documentation. Registration of a de facto relationship also has other benefits including establishing the status of the relationship for the purpose of taxation and superannuation. A relationship cannot be registered for the purposes of seeking a partner visa in either the Northern Territory or Western Australia.
When can a De Facto Relationship not be Registered?
There are circumstances that preclude a couple from registering a de facto relationship. A couple cannot register a de facto relationship if either partner is under the age of 18. In addition, a couple cannot register a de facto relationship if they are in a prohibited relationship to each other: that is, they must not be direct ancestors (parent or grandparent) or direct descendants (child, grandchild), siblings or half-siblings.
It is also not possible to register a de facto relationship if either partner is legally married or in a registered relationship with someone else. If there have been previous marriages or registered relationships for either partner, evidence of the dissolution of these relationships must be provided.
Finally, at least one member of the couple must live in the registering state or territory, except in Tasmania where both partners must reside in the state.
Does Registering a Relationship Guarantee a Partner Visa?
Registering a de facto relationship helps couples demonstrate that they are involved in a genuine and committed relationship, which is a significant hurdle for obtaining a partner visa. However, the successful registration of the relationship does not itself guarantee that the partner visa will be approved and additional requirements must also have to be satisfied.
Which Visa should a De Facto Apply For?
If a de facto partner is outside Australia they will apply first for a Partner (Provisional) Visa (subclass 309), and later be reassessed for a permanent Partner (Migrant) Visa (subclass 100). A partner who is already in Australia will initially apply for a Partner Visa (Temporary) (subclass 820), and after two years will be reassessed for a Partner Visa (Permanent) (subclass 801). A permanent visa (subclass 100 and 801) will allow the de facto partner to remain in Australia, to apply for citizenship, and to receive welfare benefits. This permanency continues even if the relationship ends.
Couples who are not already living together in a domestic relationship (that is, are not de factos) but plan to marry within nine months can apply under a Prospective Marriage Visa (subclass 300), also known as the fiancé visa. An applicant for a fiancé visa must be able to prove that they have met their prospective spouse in person after they turned 18. This precludes arranged marriages where the couple have not met, and relationships that have only existed over the internet. A prospective marriage visa is a temporary visa until after the marriage, at which point the couple can apply for a Partner Visa (Permanent) (subclass 801).
If you need advice on how to register a de facto relationship for a de facto visa or on any other legal matter, please contact Armstrong Legal on 1300 038 223 or send us an email to make an appointment.