Many temporary Australian visas, such as work and study visas, allow the holder to include their spouse or de facto partner in the application. This could be either immediately when the main application is lodged, or later as a “subsequent entrant”.
A partner included in this way is referred to as a “secondary applicant” and must meet the definition of a “member of the family unit” of the primary applicant. In non-humanitarian visa matters, regulation 1.12 of the Migration Regulations 1994 (Cth) (Regulations) defines a member of the family unit as:
- a dependent child; and/or
- a spouse or de facto partner
When it comes to including partners, a common question is how long a couple must have been together before the partner can be included, and in particular whether the minimum relationship duration of 12 months applies to them. Broadly speaking, the answer depends on two things:
- whether the couple are married or in a de facto relationship; and
- which type of visa the partner is being added into.
- Spouse or de facto partner: two definitions
Spouse or de facto partner? Two definitions
The first question is simply whether the couple are genuinely married or in a de facto relationship.
The relationship duration requirement of 12-months discussed below applies only to those claiming to be a de facto couple. It has no application to spouses, who can be included based on the strength of their genuine and valid marriage from the outset.
Spouses and de facto couples must show that:
- they have a mutual commitment to a shared life to the exclusion of all others;
- are in a genuine and continuing relationship; and
- are either living together, or are not living apart on a permanent basis.
When is a 12-month-long de facto relationship required?
The second question is the visa type.
Under regulation 2.03A of the Regulations, some visas require a de facto couple to show a relationship of at least 12 months immediately before the application is lodged.
This duration requirement applies where the application is for:
- a permanent visa;
- a Business Innovation and Investment (subclass 188);
- a Skilled Employer Sponsored Regional (subclass 494);
- a Student (subclass 500);
- a Partner visa (subclasses 309/100 and 820/801); or
- a General Skilled Migration visa, defined to include subclasses 175, 176, 189, 190, 475, 476, 485, 487, 489, 491, 885, 886 and 887.
If the visa applied for is on this list, a de facto partner must meet the 12-month requirement unless:
- the couple have registered their relationship with an Australian state or territory. This option is available in most states and territories and is often the most practical route for couples who have been together for a shorter time;
- there are compelling and compassionate circumstances; or
- the applicant’s partner holds, or has held, a permanent humanitarian visa, and the relationship was declared before that visa was granted.
For a de facto partner being added to a visa that is not mentioned in regulation 2.03A, no minimum relationship length applies. Some noteworthy examples include the:
- Skills in Demand (subclass 482) visa; and
- New Zealand Citizen Family Relationship (subclass 461) visa
Despite not being subject to a duration requirement, though, bear in mind that the couple do still need to produce sufficient evidence to meet the legal definition of de facto in section 5CB of the Migration Act; that is, a committed, exclusive, genuine and continuing relationship.
How do I prove a genuine de facto relationship?
Regardless of whether the 12-month requirement applies, a de facto relationship must still be genuine and continuing.
Under regulation 1.09A, the decision-maker may consider four factors in deciding whether a de facto relationship exists. These include:
Financial aspects
- any joint assets and liabilities; and
- how the couple share day-to-day household expenses.
Nature of the household
- the couple’s living arrangements; and
- how they share responsibility for housework.
Social aspects
- whether the couple present themselves to others as being in a de facto relationship; and
- their joint social activities.
Nature of the couple's commitment to each other
- the duration of the relationship; and
- the length of time they have lived together.
Though the length of the relationship is not a separate threshold, it remains one of the factors that shows a relationship is genuine, sitting within the couple’s commitment to each other.
Our Partner visa document checklist offers suggestions for documents which cover these four considerations.
In every case, relationship claims should be truthful and consistent across the primary and secondary applications and any earlier declarations, as providing incorrect or misleading information can have serious consequences under the Act.
Require assistance?
There is no universal 12-month rule for adding a partner to a temporary visa. The requirement applies only to de facto couples applying for the certain visas listed in regulation 2.03A. For the other temporary visas not listed in regulation 2.03A, and for spouses, there is no relationship duration requirement but the couple do still need to show a genuine and continuing relationship.
If you would like assistance assessing your eligibility or preparing an application, please feel free to contact us by email at [email protected] or phone +61 3 9016 0484.
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