The 820 Partner Visa 12 month Relationship Requirement & Registering a de facto relationship – Do you have to have lived together for 12 immediately before you apply for an 820 Visa? How do they calculate the de facto relationship length ? Is there an Exemption to the 12 month de facto relationship requirement?
Answer: This is an incredibly common and fundamentally important question – that being the case I will address this subject matter in greater detail.
When applying for any Australian visa it is important to understand what are the “time of application” and “time of decision” requirements. If you do not meet the “time of application requirements” you run the risk of a visa refusal. In respect of an 820-801 application and the common pathway for de facto couples, subclause 820.221(2) requires, at the time of application, that you are either the “spouse” or “de facto partner” of an “Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”.
Now you are probably thinking, well I just read subclause 820.221(2) and it does not mention anything to do with a 12 month relationship requirement or anything to do with living together for 12 months !!! So there is no requirement!!!? Hold on, the devil is always in the detail and in having an understanding of how Migration Law operates…..
So, subclause 820.221(2) sets the requirement that the applicant is the de facto partner of an “Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”. Now, from here we need to ask ourselves what is the definition of a “de facto partner”?? Well at first glance, the definition or attributes of “de facto partners” is set in Section 5CB of the Migration Act. It goes on to speak of “mutual commitment to a shared life”, “exclusion to all others”, “Genuine and continuing” ,“Do not live separately and apart on a permanent basis”, “persons are not married” etc.
Again, you are probably saying, there still isn’t anything in Section 5CB of the Act with a 12 month relationship requirement or anything to do with living together for 12 months. Hold those horses again, Section 5CB of the Act goes on to state that subsection 5CB(3) states that the Regulations may set provisions that determine whether the conditions stated in s5CB actually exist in relation to de facto Relationships. So, we now need to check the Migration Regulations to see what prescribed provisions have been set – if any. When we search the Migration Regulations we see provisions set in Regulation 1.09A AKA the 4 Pillars (Financial Aspects of the Relationship, nature of the household, social aspects, nature of the commitment to one another). Regulation 1.09A, under note 1 refers us to Regulation 2.03A. Subregulation 2.03A(3) is where the 12 month de facto relationship requirement “at time of application” is set in Migration Law. Folks, it exists!
Exemptions to the 12 Month De facto relationship Requirement for Partner Visas (Registering the Relationship, compelling and compassionate circumstances etc)
Now that we have established that there is a 12 month de facto Relationship requirement imposed at the time of Application for an 820-801 (when assessed via subclause 820.221(2)) partner visa application via subregulation 2.03A(3) of The Migration Regulations – the natural question is to ask if there are any exemptions to the 12 Month De facto Relationship Requirement??? In short, yes there are. Let’s discuss them below:
A. Relationship Registration
In a nutshell, subregulation 2.03A(5) allows for an exemption to the time of application 12 month de facto relationship requirement (subregulation 2.03A(3) ) – when the relationship is a registered relationship within the meaning of 2E of the Acts Interpretation Act 1901. This encompasses the relationship registers under individual state legislation – see :
· Relationships Register Act 2010 (NSW)
· Civil Partnerships Act 2011 (Qld)
· Relationships Act 2008 (Vic.)
· Relationships Register Act 2016 (SA)
· Relationships Act 2003 (Tas)
Note: Western Australia and NT do not have relationship registration that is recognised under subregulation 2.03A(5) – in respect of Partner Visa Applications.
Where to Register your Relationship: Here is a directory for the respective registration websites:
https://www.servicesaustralia.gov.au/making-your…
B. “Compelling and compassionate circumstances”
Those that have not been in a de facto partnership for at least 12 months have scope to argue “compelling and compassionate circumstances”. In policy, a dependent child to the relationship may meet that threshold, a pregnant mother would not however under policy.
3. Former or current permanent humanitarian visa holders
Under paragraph 2.03A(4)(b),former or current permanent humanitarian visa holders do not need to meet the 12 month de facto relationship requirement – provided the sponsor reported the relationship to the Department before the permanent humanitarian visa was granted.
4. 820-801 Applications Already Lodged without 12 Months de facto relationship at the time of Application.
The wording of subregulation 2.03A(5) allows 820-801 applicants to even register the relationship after the 820-801 has been lodged (but before a decision) – in order to meet the 12 month relationship exemption contained in subregulation 2.03A(5). Again, this does not negate providing strong evidence of your relationship with your application.
Critical Take Aways
Registering your relationship is just an exemption to the 12 month relationship requirement – it does not exempt you from providing critical evidences across the 4 pillars and beyond to demonstrate the genuine nature of your relationship. At times, building your evidences and waiting to lodge a partner visa is the best pathway towards a successful outcome.