Plenty of couples assume they are de facto because they have been together for years. Others assume they are not, because they have never shared a lease. Both assumptions cost people a de facto partner visa.
The migration definition is narrower than the everyday one in some ways, and much broader in others. Below, we set out what the law actually requires, how the twelve-month rule really works, and the registration step that removes it.
What is a de facto partner visa?
A de facto partner visa lets the de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen live in Australia. It is not a separate subclass. Instead, de facto couples apply through the same partner visa subclasses as married couples.
However, the difference sits in what you prove. Married couples produce a marriage certificate. De facto couples must establish that their relationship meets the statutory definition — and that takes more work at lodgement.
The four elements of a de facto relationship
Section 5CB of the Migration Act 1958 sets the test. To qualify, you and your partner must show that:
- You are not married to each other.
- You have a mutual commitment to a shared life, to the exclusion of all others.
- The relationship is genuine and continuing.
- You live together, or you do not live separately and apart on a permanent basis.
- You are not related by family.
In addition, the applicant must be at least 18. Likewise, so must the sponsor.
The 12-month rule for a de facto partner visa
Here is the requirement that catches most couples. Generally, your de facto relationship must have existed for at least twelve months immediately before you lodge.
Notably, the Department counts the relationship, not the lease. That distinction matters more than most people realise.
What the 12-month rule does not mean
It does not mean twelve months of continuous cohabitation. The statutory test asks whether you live together or do not live separately and apart on a permanent basis. Therefore, periods apart do not automatically stop the clock.
Couples separated by work postings, visa conditions, study or family illness can still meet the test. However, you must explain the separation, evidence it, and show the relationship continued throughout. In short, the question is permanence, not distance.
Of course, casual dating is different. A relationship that had not yet become a committed shared life will not start the clock, no matter how long you had known each other.
Relationship registration: the de facto partner visa shortcut
If you cannot meet the twelve months, one option removes the requirement entirely. Register your relationship under a prescribed state or territory relationship register.
Currently, registration is available in New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory. Western Australia and the Northern Territory do not operate a register.
However, registration is not a shortcut to approval. It removes one requirement, and one only. You must still satisfy the section 5CB definition, and you must still prove the relationship on evidence. Moreover, most registers impose their own residency conditions, so check the rules in your state before you rely on this route.
Which de facto partner visa should you apply for?
- Subclass 820 / 801 — you are in Australia when you lodge. The 820 comes first, then the permanent 801.
- Subclass 309 / 100 — you are outside Australia when you lodge. The 309 brings you here, then the permanent 100 follows.
- Subclass 300 — the prospective marriage visa, for engaged couples who will marry in Australia. This is not a de facto pathway.
Prospective marriage visa post, anchor “prospective marriage visa guide”
In practice, your location at lodgement drives the choice. Get it wrong and the application may be invalid, which costs the full charge.
Department of Home Affairs, family visa page 820 visa
Proving a de facto partner visa: the four pillars
Meeting the definition is one thing. Proving it, meanwhile, is another. The Migration Regulations direct decision-makers to consider four categories in particular:
- Financial aspects. Joint assets, joint liabilities, pooled resources, shared expenses.
- The nature of the household. Living arrangements, shared responsibility for the home, any children.
- Social context. Whether others see you as a couple, and whether you do things together socially.
- The nature of your commitment. Duration, time living together, emotional support, and whether you both see it as long-term.
Most refusals we review are not refusals of unconvincing relationships. Instead, they are refusals of unbalanced evidence — two hundred photographs and almost nothing on finances.
De facto partner visa mistakes we see most
- Waiting out the twelve months unnecessarily. Registration would have solved it in weeks.
- Assuming time apart disqualifies you. Often it does not — but you must explain it.
- Starting the clock from the first date. The clock starts when the committed shared life starts.
- Registering, then relaxing. Registration removes one requirement, not the evidentiary burden.
- Opening a joint account the week before lodgement. A pattern over time carries weight. A gesture does not.
Frequently asked questions about the de facto partner visa
How long do you have to be together for a de facto partner visa?
The de facto relationship must have existed for at least twelve months immediately before you lodge and cohabitated for at least 12 months. Registering the relationship under a prescribed state or territory register removes the requirementr of cohabitation.
Do you have to live together to be de facto?
Not continuously. The test asks whether you live together, or whether you do not live separately and apart on a permanent basis. Therefore, temporary separations can still fit — provided you explain and evidence them.
Which states let you register a relationship?
New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory. Western Australia and the Northern Territory do not have a register. Most registers also require at least one party to live in that state or territory.
Does relationship registration guarantee the visa?
No. It removes the twelve-month requirement only. You must still meet the statutory definition and prove the relationship across all four evidence categories.
Can same-sex couples apply for a de facto partner visa?
Yes. The definition applies regardless of the gender of either partner, and the same evidence framework applies.
What if we have been together five years but never lived together?
You may still qualify. However, this is exactly the situation where advice before lodgement matters. The application will need to address the living arrangements directly, with evidence, rather than leave a delegate to draw their own conclusion.
Speak to a de facto partner visa lawyer in Parramatta
Ultimately, before you lodge, get clear on whether you meet the definition — and on how you will prove it. Tolic Lawyers maps the pathway, prepares the application, and writes the submissions that connect your evidence to the law.
Call (02) 8077 2562 or book a consultation. Suite 19/103 George Street, Parramatta NSW 2150.
Written by Arnela Tolic, Principal Solicitor, Tolic Lawyers.
Disclaimer: This article is general information only and is current at the date of publication. It is not legal advice, and you must not rely on it as legal advice. Migration law changes frequently, and visa application charges rise on 1 July each year. Every matter turns on its own facts — obtain advice specific to your circumstances before acting.
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