Are you in a de facto relationship with an Australian citizen or permanent resident, or an eligible New Zealand citizen? If you wish to apply for a partner visa to remain permanently in Australia with your de facto partner, you may consider registering your relationship with an Australian State or Territory Government. The advantage of doing so is that it means you no longer need to meet the 12 month minimum length of relationship requirement that would otherwise apply.
Let us delve deeper into what this all means for a prospective partner visa applicant. To start with, we’ll go back to basics and examine the meaning of a de facto relationship sa for partner visa application purposes.
What Is A De Facto Relationship?
Section 5CB of the Migration Act 1958 (the Act) defines a de facto partner/de facto relationship as outlined below.
A person is the de facto partner of another person (whether of the same or a different sex) if, the person is in a de facto relationship sa with the other person.
A person is in a de facto relationship with another person if they are not in a married relationship with each other but meet all of the following criteria:
(a) they have a mutual commitment to a shared life to the exclusion of all others;
(b) the relationship between them is genuine and continuing;
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family.
Same-sex de facto relationships are equally recognised for migration law purposes.
Also be aware that the Migration laws give equal recognition to spouse (married) relationships and de facto partner (unmarried) relationships.
The Migration Regulations prescribe additional requirements that need to be met for a de facto relationship to exist for migration law purposes.
Firstly, Regulation 1.09A states that the following four matters must be considered in determining if the visa applicant meets the definition of a de facto partner for the purposes of a partner visa application:
- the financial aspects of the relationship;
the nature of the household;
the social aspects of the relationship; and
the nature of the persons’ commitment to each other.
The financial aspects of the relationship may be evidenced by:
- joint loan agreements for real estate, cars, major household appliances or any other agreements relating to finances or purchases (e.g. property purchased by the couple as tenants in common);
- use of joint bank accounts – the accounts should be operated reasonably frequently for a reasonable period (simply opening such an account would be given less weight);
- pooling of financial resources (particularly relating to major financial commitments);
- legally binding financial obligations that one party owes to the other (e.g. acting as guarantor for a loan, existing power of attorney);
- sharing day to day household expenses.
The nature of the household may be evidenced by:
- joint ownership of residential property;
- joint residential leases;
- joint rental receipts;
- joint utilities accounts (e.g. electricity, gas, telephone);
- correspondence addressed to either or both parties at the same address;
- shared responsibility for the care and support of children;
- shared responsibility for housework.
The social aspects of the relationship may be evidenced by:
- evidence that the relationship has been declared to, and accepted by, other government bodies and commercial/public institutions or authorities;
- statements of parents, family members, relatives, friends and other relevant persons. These should be presented in the form of statutory declarations (which is given more weight given its status as a legal document);
- joint membership of organisations or groups, documentary evidence of joint participation in sporting, cultural, social or other activities;
- joint travel and plans for the future;
- whether the parties present themselves as a couple socially.
Immigration policy notes that the decision maker should also consider the extent to which laws and/or traditions of the applicant’s home country may prevent the couple from openly admitting the existence of the relationship.
This aspect requires the decison maker to assess the mutuality of the couple’s committment to one another, having regard to (but not limited to):
- the duration of the relationship;
- the length of time the couple have lived together;
- the degree of companionship and emotional support that the parties draw from one another; and
- whether the parties view the relationship as being for the long term.
This would include assessing the following factors:
- the couple’s knowledge of one another’s personal circumstances in relation to, for example, the background and family situation of one another (this may be confirmed in an interview with the Department);
- evidence that the intention of each party is that the relationship is for the long term by considering, for example, the extent to which the couple have combined their affairs and have provided for one another (such as being a beneficiary to one another’s will and/or superannuation).
In cases where the couple are, or until recently were, living separately, claim that their separation is/was not permanent, the Department will consider their reasons for the temporary separation.
Be aware that regulation 1.09A requires only that these four matters be considered; it does not require them to be met. It is open to the Department to give as much or as little weight to the evidence provided by the applicant in support of each of the four matters and explain their reason/s for doing so. It would also constitute an error of law if a refusal decision is based (in full or in part), on an assessment that one (or more) of the four matters is not met.
Despite this interpretation of the law as provided for in immigration policy, in practice, it is important to point out that each of these four aspects should be evidenced when lodging the visa application as otherwise, you risk the Department asking further questions about your relationship. In cases where it is not as clear cut (for example, your living arrangements may not clearly fit within the requirements), it is vital that you fully explain the circumstances, and provide supporting evidence in this regard. The Department will be looking to ensure that each of these aspects is satisfied, and will need to see explanations for why this may not be the case when making a decision on the application.
Note that in addition to the above, all the circumstances of the relationship must be considered by the Department in assessing the application.
And secondly, Regulation 2.03A prescribes additional criteria for de facto partners, as listed below.
- minimum age requirement – both the visa applicant and their partner must be at least 18 years of age at the time that they claim the relationship; that is, when they apply for the visa; and
- minimum length of relationship requirement – the de facto relationship must have existed for at least 12 months immediately before the date of lodgement of the visa application, unless:
- the applicant can establish compelling and compassionate circumstances for the grant of the visa;
- the applicant is in a de facto relationship with a person who holds (or held) a permanent humanitarian visa;
- the applicant is in a de facto relationship with a person who is an applicant for a permanent humanitarian visa; or
- the de facto relationship is registered under an Australian State/Territory law as prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008.
What Is The 12 Month Rule?
This rule requires that all de facto partner visa applications must demonstrate that they have been in a “de facto relationship” as defined by Migration law for at least 12 months prior to the application date. That last part is important because it means that you cannot correct this later; you require evidence from the past.
This rule requires that the whole relationship is evidenced as being characterised as de facto for at least 12 months. It is not simply a matter of showing that you lived together for 12 months. There are four categories of evidence that are required to meet this test- financial, household, commitment and social evidence. Often de facto couples have been living together for 12 months but lack the documentation to evidence a complete de facto relationship for that time period. While they meet the de facto definition now, they may not have the evidence going back 12 months. In this way, the 12-month rule can be quite limiting.
One way you can avoid this problem is to register your relationship, which means that you will not need to evidence 12 months of being in a de facto relationship sa. You will still however need to meet the requirement to demonstrate that you are in a genuine de facto relationship at the time of application. There are also other circumstances in which the 12 month minumum length of relationship period does not apply.
When Does The 12 Month Rule Not Apply?
First, if the applicant can establish compelling and compassionate circumstances for the grant of the visa, the 12 month minimum relationship requirement will not apply.
What Are Compelling And Compassionate Circumstances?
The 12 month minimum relationship period requirement applies unless the applicant can establish ‘compelling and compassionate circumstances’ for granting the visa.
‘Compelling and compassionate’ is a high threshold as the applicant’s specific circumstances must be both compelling and compassionate. Note that as neither of these terms are defined in the Migration Act or Regulations, they take their ordinary dictionary meaning for these purposes.
Immigration policy provides a useful guide as to how the Department interprets this term, but be aware that this is not legislation and therefore the Department is not bound to follow policy. Nevertheless, it is a good indication of the likely interpretation taken by the decision maker.
Under policy, compelling and compassionate circumstances may include (but are not limited to) cases where:
- the applicant has a dependent child of the relationship;
- de facto relationships are illegal in the country in which one or both of the couple reside; or
- a same sex couple has married overseas. In these cases, the couple is prevented from registering their relationship under a prescribed State/Territory law.
Where the sponsor or applicant is pregnant at the time the application, this is not generally accepted as meeting the ‘compelling and compassionate’ criterion. However, given the requirement for the decision maker to examine all of the circumstances relating to an application, there may be exceptional or unique circumstances relating to the pregnancy that may be ‘compelling and compassionate’ to justify granting the visa.
Partner Is A Current Or Former Permanent Humanitarian Visa Holder
The minimum 12 month relationship period does not apply if:
- the applicant’s de facto relationship is with a current or former holder of a permanent humanitarian visa; and
- the applicant’s partner informed the department of the existence of the relationship before they were granted the permanent humanitarian visa.
Partner Is A Permanent Humanitarian Visa Applicant
The minimum 12 months relationship period does not apply if the applicant’s de facto relationship is with an applicant for a permanent humanitarian visa.
Relationship Is Registered Under Australian State Or Territory Law
The 12 month minimum relationship period does not apply if the relationship is registered under a State or Territory law prescribed in the Acts Interpretation Act (Registered Relationship) Regulations.
Please note that the regulations do not explicitly state by when the relationship must be registered. Accordingly, where an applicant registers their de facto relationship after the application is lodged, but before it is decided, they would be taken to have met the registered relationship sa requirement.
The de facto relationship may be registered in one of the following jusrisdictions in Australia to meet this criterion:
- Victoria (VIC);
- Tasmania (TAS);
- New South Wales (NSW);
- Australian Capital Territory (ACT);
- Queensland (QLD).
Applicants who are claiming that the minimum 12 month relationship period should not apply because their relationship is registered should provide evidence of the registration (for example, a certificate) to verify the registration. Note that submitting a receipt indicating that an application for registration has been lodged is not sufficient for this purpose. The relationship must be registered in order for this criterion to be met.
How Can You Register Your Relationship In South Australia?
A couple can register their de facto relationship sa with Births, Deaths and Marriages (BDM) if at least one person in the relationship lives in South Australia. Couples may apply to register a relationship sa regardless of their sex or gender identity.
Registering your de facto relationship sa means that your relationship is legally recognised
People who have been married before, been in a relationship registered in South Australia or in a ‘corresponding law’ registered relationship (this means a relationship registered under similar laws in another state or county) need to demonstrate that the previous relationship has ended, by providing evidence in the form of, for example, a divorce certificate, nullity order or death certificate.
Couples are not required to have a ceremony when registering their relationship.
Do You Need To Provide Evidence Of Your Relationship To Register?
No, evidence of the relationship is not required to register relationship sa. However the application for relationship registration sa must include completed statutory declarations that are witnessed by an authorised person, as well as evidence of identity and age of both persons. Payment of the applicable registration fee to register a relationship sa is also required.
All overseas documents that are priovided for the relationship registration sa must be translated into English by an accredited translator.
How Do You Apply To Register Your Relationship?
You can apply to register your relationship with Consumer and Business Services (CBS) in South Australia.
You need to complete a ‘Register a relationship – application’ form. This can be completed online at the above website link, but must then be printed.
The application to register relationship sa must be accompanied by completed statutory declarations witnessed by an authorised person, evidence of the identity and age of each person in the relationship, and the fee as prescribed.
The relationship registration sa application can then be submitted in one of the following ways:
Births Deaths and Marriages
Level 2, 91-97 Grenfell Street
Monday to Friday 9:00am – 4:30pm
Births Deaths and Marriages
GPO Box 1351
Adelaide SA 5001
Who Is Eligible To Register?
You can register your relationship if you are 18 years of age or older and in a relationship with another person as a couple. At least one of you must live in South Australia. Couples may apply to register relationship sa irrespective of their sex or gender identity.
Your relationship cannot be registered if you or your partner are:
- already in a registered relationship or corresponding law registered relationship;
- in a relationship as a couple with another person; or
- related by family.
What Documents Do You Need To Provide To Apply?
You will be required to submit the following documents when applying to register your relationship in South Australia:
- certified copies of identity documents for both persons in the relationship;
- a certified copy of a document to evidence that at least one person is currently living in South Australia; and
- if either party has previously been married, in a registered relationship or corresponding law registered relationship, you must provide a certified copy of evidence that the previous relationship has ended.
You must provide certified copies of your identity documents (a certified copy means a photocopy that has been endorsed as a true copy of the original document).
The following people can certify your identity documents:
- Justice of the peace (JP);
- Notary public;
- Commissioner for taking affidavits in the Supreme Court of South Australia;
- Proclaimed police officer;
- Australian Consular Officer or Australian Diplomatic Officer (within the meaning of the Consular Fees Act 1955).
Each person must provide one different form of ID from lists 1, 2 and 3. Where you cannot provide identification from list 2, you must provide an Australian or overseas passport and two forms of identification from list 3. The same document cannot be used twice. Further information is available in the ‘Proof of ID’ form which is available on the Government of South Australia Consumer and Business Affairs website.
All identification must be current (i.e. not expired).
Proof Of Residence In South Australia Documents
At least one person must provide a document from list 4 showing a current South Australian residential address (not a PO box, business or third party address).
This document must have been issued within the last three months, or in the case of a tenancy/lease agreement or bond lodgement notice, the document must have been signed within the last three months.
Where a utility account, rates notice, home insurance paper or vehicle registration is provided as evidence of your residential address, you must also provide proof of payment (e.g. receipt).
What Is The Cost To Register A Relationship?
The current fee to register a relationship in South Australia is $123.00.
What Happens After You Have Applied?
CBS will email you a statutory declaration, which must be signed by both parties in front of an authorised witness. You will need to submit your signed statutory declarations online.
CBS will review your uploaded documents and process your application.
The earliest your relationship can be registered is 28 days after your application has been processed. This cannot be fast-tracked.
Get More Information About Registering A De Facto Relationship In South Australia
We have prepared a series of articles to provide further information about the de facto relationship visa program and how it works. We recommend you refer to the links below for more information.
We also recommend that you refer to our articles on articles on the Partner Visa Changes and Australia Partner Visa Changes for a discussion of changes that have been proposed to partner visas, which could have very significant ramifications for potential visa applicants. This demonstrates the importance of being fully equipped with the latest information, combined with extensive experience in migration law, to give yourself the best chance of achieving a successful outcome on your application.
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The purpose of this article is to provide a general overview about registering a de facto relationship in South Australia. It is also beyond the scope of this discussion to provide a detailed description of all applicable factors you will need to consider. We therefore strongly recommend if you are considering applying for a de facto visa and registering your relationship in South Australia as part of this process, that you make the proper further enquiries to ensure that you are fully informed about your eligibility, the application process and the documentary evidence requirements that apply before you lodge your application. This will give you the best chance of a successful outcome and potentially avoid unnecessary processing delays or a potential visa refusal. Getting it right the first time also means you avoid the loss of valuable time and money that comes with a visa refusal decision.
For up to date advice on the de facto visa application and registering your de facto relationship in South Australia as part of this process, including an assessment of your eligibility for visa grant, the process for applying and advice about the requirements that apply to a de facto relationship, as well as further advice and assistance about a registered relationship sa and how it interplays with the partner visa requirements, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.
Consumer and Business Services South Australia – Apply to Register a Relationship