If you are considering an Australian visa and want to include your de facto partner as a secondary applicant, you might have heard that you must have been together for at least 12 months. While a 12-month relationship requirement applies to several Australian visa applications, it is not a universal rule for every visa and there are also important exceptions that can apply.
Understanding whether the 12-month requirement applies to your visa, and whether an exception may be available can make a significant difference when planning an application.
What is the 12-month de facto relationship requirement?
Regulation 2.03A of the Migration Regulations 1994 imposes an additional requirement on applicants claiming to be in a de facto relationship. For the visa categories listed under regulation 2.03A(3)(a), an applicant will generally need to demonstrate that the de facto relationship existed for at least 12 months immediately before the visa application was made, unless an applicable exception/exemption applies.
Importantly, this is a requirement relating specifically to the period of the de facto relationship. Simply having known or “casually” dated your partner for 12 months does not necessarily mean that you have been in a de facto relationship for that entire period.
It is also crucial the 12-months immediately pre-dates the application. For instance, if you were in a married or long-term relationship that broke down. Then you re-united, only the most recent period of relationship would count toward the 12-month requirement. If this was a period of less than 12 months, you would not meet the length of relationship required.
Which visas are subject to the 12-month requirement?
Regulation 2.03A(3)(a) includes various visa categories and it is not just limited to the Partner Visas. These include:
permanent visas;
Business Skills (Provisional) (Class EB) visas, including subclass 188;
Skilled Employer Sponsored Regional (Provisional) (Class PE) visas, including subclass 494;
Student (Temporary) (Class TU) visas, including subclass 500;
Partner (Provisional) (Class UF) visas, including subclass 309;
Partner (Temporary) (Class UK) visas, including subclass 820; and
General Skilled Migration visas, which include subclasses such as 189, 190, 485 and 491.
What about visas that are not listed?
This is an important distinction that can sometimes be overlooked.
Departmental policy provides that, for visas not listed in paragraph 2.03A(3)(a):
The 12-month relationship requirement does not apply; and there is no prescribed minimum relationship period that a visa applicant in a de facto relationship has to meet as a criterion for visa grant.
However, the couple will still need to satisfy the applicable requirements for recognition as de facto partners. The absence of a prescribed 12-month period does not mean that any new relationship will automatically qualify.
What if you have been de facto for less than 12 months?
For visas that are subject to regulation 2.03A, being together for less than 12 months does not necessarily mean that there is no pathway available.
There are circumstances in which the 12-month minimum may not apply. Departmental policy identifies exceptions including certain compelling and compassionate circumstances, particular humanitarian visa situations, registration of the de facto relationship under prescribed Australian State or Territory legislation, or a change in the relationship to marriage where the relevant legislative requirements are met.
Registering your relationship
One of the most relevant exceptions for many couples is relationship registration.
Under regulation 2.03A(5), the 12-month minimum relationship period does not apply where the de facto relationship is registered under a prescribed State or Territory law.
Registering a relationship can be done in
New South Wales
Victoria
Queensland
South Australia
Tasmania
Australian Capital Territory
Western Australia & Northern Territory do not have any current legislation / process to register as a de facto relationship.
Another important point is timing. There is nothing specifying that the relationship must already have been registered on the date the visa application was lodged. Accordingly, a relationship registered after lodgement but before the application is decided can satisfy the exception. However, we would generally advice it is best practice to do this prior to or as soon as possible to lodgement.
Applying to register the relationship is not enough, you must also apply for and provide a copy of the registration certificate. Policy specifically states that a receipt showing an application for registration has been lodged is insufficient.
What are “compelling and compassionate circumstances”?
Another potential exception is where an applicant can establish compelling and compassionate circumstances for the grant of the visa. This is not intended to be a general workaround for couples who simply have not reached 12 months.
The describes this as a high threshold meaning they truly have to be unique and exceptional circumstances to be accepted. The policy explains circumstances to be both compelling and compassionate.
Compassionate and compelling are not defined, however, examples identified in policy include circumstances where the applicant has a dependent child of the relationship, or where de facto relationships are illegal in the country where one or both members of the couple reside.
Importantly, the fact that a relationship is genuine does not, by itself, establish compelling and compassionate circumstances.
Pregnancy alone is also not generally considered sufficient, although exceptional or unique circumstances associated with a pregnancy may potentially be relevant.
An exemption of the 12 month requirement does not remove the need to prove a genuine de facto relationship
While you can remove the 12-month minimum relationship period where regulation 2.03A(5) applies, it does not mean that the remaining requirements for a de facto relationship disappear.
Departmental policy explains that regulation 2.03A operates in addition to the assessment whether a de facto relationship exists.
Evidence should therefore still address matters such as the couple's financial arrangements, household, social recognition of the relationship, and commitment to one another.
So, can you apply if you haven't been together for 12 months?
Potentially, yes.
The correct answer depends on:
Which visa you are applying for - Not every visa is subject to the prescribed 12-month requirement.
How long you have actually been in a de facto relationship - The relevant period is not necessarily the same as how long you have known or “casually” dated one another.
Whether your relationship is registered - A relationship registered under prescribed State or Territory legislation may remove the 12-month minimum for visas otherwise subject to regulation 2.03A.
Whether another exception applies - For example, particular compelling and compassionate or humanitarian circumstances may be relevant.
Whether you otherwise meet the de facto relationship requirements - Removing the 12-month requirement does not automatically establish that a qualifying de facto relationship exists.
Every relationship is different. Two couples who have been together for exactly the same amount of time may have very different migration options.
Your visa subclass, location, relationship history, living arrangements, registration status and evidence can all affect how the requirements apply to your circumstances. If you are considering an Australian visa but have been in a de facto relationship for less than 12 months, it is worth understanding the requirements before assuming that you need to wait.
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This article provides general information only and does not constitute migration advice. Australian migration law and policy can change, and the requirements applicable to an individual application depend on the circumstances of the case.