Applying for a partner visa in Australia requires careful planning and a thorough understanding of both migration and family law requirements. Whether you are married or in a de facto relationship, providing evidence of a genuine and ongoing commitment is essential. 

Many applicants focus solely on migration criteria and overlook the family law implications of their relationship status, yet these can have significant legal and financial consequences. To help applicants navigate these complexities, our migration and family law teams have collaborated to provide this guide on key considerations when applying for a partner visa.

De Facto vs Married Partner Visa Applicants

We are often asked whether it is better to apply for a partner visa as a married couple and whether the Department favours married applicants over applicants in a de facto relationship. A partner visa application can be lodged by applicants who are either legally married or in a de facto relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen. Both relationships are recognised equally by the Department of Home Affairs.

While married applicants must demonstrate a legally valid marriage, de facto applicants need to establish that they have been in a genuine de facto relationship for at least 12 months prior to lodging their visa application, unless they qualify for an exemption. The Department of Home Affairs considers the following four pillars when assessing the genuine and continuing nature of a relationship:

1. Financial aspects of the relationship;
2. Nature of the household;
3. Social aspects of the relationship; and,
4. Nature of the persons’ commitment to each other.

There is a common misconception that a marriage certificate alone is enough to secure a partner visa, however this is not the case. Both married and de facto applicants must provide strong supporting evidence across these four pillars to support the genuine and continuing nature of their relationship and maximise their prospects of success. 

De Facto Relationships: Migration vs Family Law

The term ‘de facto’ is interpreted differently in migration law and family law.

• Migration Law Perspective: for a partner visa, a de facto relationship must have existed for at least 12 months immediately before lodging the application, unless an exemption applies. The relationship must be mutually exclusive, the partners cannot be married to each other, and they must not be related by family (where prohibited in the Marriage Act). Evidence is required to demonstrate that the partners have been living together or, if apart, that the separation is not permanent. The Department of Home Affairs also considers factors such as financial interdependence, social recognition of the relationship, and shared household responsibilities.
• Family Law Perspective: to be in a de facto relationship you must “have a relationship as a couple living together on a genuine domestic basis”, not be married and not be related to each other. There is no period of time that you have to be “living together on a genuine domestic basis” for you to be in a de facto relationship however, timeframes do have to be met (amongst other criteria) before an application can be made for a financial settlement in the event of a breakdown in a de facto relationship.

It is common for applicants to pursue a partner visa application without fully understanding the family law consequences of being in a de facto relationship. For example, by having to show the level of commitment to your partner for the purpose of applying for a visa, you may inadvertently open yourself up to a property settlement or spousal maintenance claim that would otherwise have been avoided.

Role of Civil Partnership Registration in Partner Visa Applications

One exemption to the 12-month de facto requirement is if the relationship has been registered as a Civil Partnership in an Australian state or territory where this option is available. At the time of writing this article, you are not able to register a de facto relationship in Western Australia or the Northern Territory. While registering your relationship as a de facto partnership provides an exemption to the 12-month rule, it does not remove the need to provide substantial supporting evidence to demonstrate that you are in a genuine and continuing, mutually exclusive relationship to the Department of Home Affairs.

Implications of Relationship Registration from a Family Law Perspective

Parties who register their de facto relationship must understand that once parties have been in a de facto relationship for 2 years or more a claim for a property settlement or spousal maintenance can be made if parties were to separate.

Whilst the Department of Home Affairs will want to see more than just evidence of the registered relationship, under the Family Law Act 1975 (Cth), the registration of the relationship and the expiration of the 2 year period  (or the birth of a child) can open the door to the possibility of a claim for a property settlement or spousal maintenance to be made.  If there was no registered relationship, a Court would have to be satisfied that the parties were “living together on a genuine domestic basis”, there has been intermingling of finances, there is a child of the relationship, or one party made significant contributions to the extent that it would not be just and equitable for a property settlement to occur.

Whilst you may not be able to fully protect yourself against a claim for spousal maintenance, you can protect yourself (to the extent possible) from a property settlement claim by properly entering into a properly drawn up Financial Agreement under the Family Law Act. A Financial Agreement can be entered into at any stage before, during or after your relationship. 

It needs to be understood that a quick fix for migration purposes can have long term and costly issues under the Family Law Act.

Conclusion

Navigating the partner visa process requires a clear understanding of both migration and family law considerations. Registering a relationship can offer advantages in meeting visa eligibility requirements, but it is essential to understand the broader legal implications.

If you require assistance with a partner visa application or advice on relationship registration, our experienced migration and family law teams can provide tailored guidance to suit your circumstances.