This is one of the most straightforward, and yet also one of the most vexed, questions that our clients ask us.
The general legal definition of a ‘de facto’ relationship is one in which a person and their partner (whether opposite-sex or same-sex) live together in a genuine relationship to the mutual exclusion of all others. In practice, the Department of Home Affairs has taken this to mean that you and your partner are interdependent, sharing most aspects of your lives.
According to the Department, the basic requirements for a de facto relationship to exist between you and your partner are:
- you are not legally married to each other
- you are committed to a shared life to the exclusion of all others
- your relationship is genuine and continuing
- you live together or do not live separately and apart on a permanent basis
- you are not related by family.
The first and last point are pretty straightforward (hopefully) – the middle three are a little less clear.
What Factors are Taken into Account?
Whether or not you are in a de facto relationship is a question of fact. That is, either you are, or you aren’t, depending on the nature of your relationship. The Department will apply a series of tests to determine the answer to this question in each case.
Merely living together is not enough – and in rare cases, living together is not actually necessary. For example, if you and your partner were housemates before you entered into your relationship, your de facto status will only commence from the date you became committed partners.
The Department will consider the totality of your relationship through the lens of what it considers to be the main indicators of a genuine relationship:
- The extent to which you share finances (or keep them separate)
- The nature and distribution of household duties
- The social aspects of your relationship (e.g. do others see you as a couple)
- Your commitment to each other long-term (e.g. do you know each other’s family well)
This is not an exhaustive list, and every relationship is different – so not performing strongly on any one of these points is unlikely to be fatal to your application, but it’s important to present your relationship as genuinely and accurately as possible if you want to sail through.
Don’t forget, you can always add evidence to your application while it’s being considered – take advantage of this by adding things like bank statements, photos, plane tickets (when you travel together) as you collect them.
The 12 Month ‘rule’
If you are not married, the Department expects that you will have lived as a de facto couple for a minimum of 12 months before the date of your application.
If you have not lived together as a de facto couple for 12 months, you need to justify to the Department why you nonetheless meet the requirements of the de facto relationship. This usually applies only in fringe cases (e.g. where religion or an outside circumstance dictates it is necessary), however, so if you are considering relying on a justification for falling short, be very careful.
There is currently only one reliable way to get around the 12 month rule – and that is by registering your relationship with the office of Births, Deaths and Marriages in your State or Territory. Currently, the following States and Territories will allow you to register your relationship (if you are not resident in one of these places, you cannot use this mechanism): Australian Capital Territory, New South Wales, South Australia, Queensland, Tasmania and Victoria.
Read our related article: Should we Register Our Relationship (Before Applying for a Partner Visa)?
The Final Word
If your relationship is genuine, the Department should ultimately figure that out – and should always get in touch with you before it refuses your application. However, you really don’t want it to get to that point. With strong preparation and a good game plan going in, you can make a very convincing case that will make the Department’s job very easy indeed.