Couples come to us confident they have been together for two years. For many, this is because they are considering applying for a partner visa. Then we ask when the de facto relationship commenced, and the answer changes three times in the first ten minutes.
Get that date wrong by a fortnight and you have lodged an application that cannot succeed on its own terms — and paid the $11,710 charge for the privilege.
Dating is not de facto
Two people are in a de facto relationship if they are not married to each other. It also requires a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, they live together or do not live separately and apart on a permanent basis.
Read that closely. Exclusivity alone is not enough. Duration alone is not enough. The relationship must have the character of a shared life.
Even where a couple describes their relationship honestly as an exclusive and committed eighteen-month relationship, separate households, separate finances and separate social lives may prevent them from establishing a de facto relationship for the entire eighteen-month period.
Conversely, the rule does not require twelve months of unbroken cohabitation under one roof. It requires twelve months of de facto relationship, and section 5CB contemplates that partners may not live together provided they do not live separately and apart on a permanent basis.
Identifying the commencement date
The commencement date is the date you choose and aligns with your evidence including:
- The date a lease or tenancy was entered into jointly, or one partner was added to the other’s tenancy
- The date of a permanent move-in, evidenced by change of address, mail redirection, utility connection or a driver licence address change
- The date the relationship was announced to family, or the first appearance as a couple at a significant family event
- The date a shared financial arrangement began — a joint liability, a beneficiary nomination, a recurring transfer
Where the transition was gradual, as it usually is, choose the date you can most strongly corroborate and be transparent about the gradual nature of it in your relationship statement.
Then build a twelve-month lookback: for the year immediately before your intended lodgement date, ensure you have evidence in each of the four categories at reasonable intervals.
The de facto cohabitation exception
What is the exemption?
Regulation 2.03A does not apply the 12-month requirement in every case.
Registered relationships.
Registration is available in New South Wales — under the Relationships Register Act 2010 (NSW), administered by the NSW Registry of Births, Deaths and Marriages — and in Victoria, Queensland, South Australia, Tasmania and the ACT. It is not available in Western Australia or the Northern Territory.
Two practical points that are frequently missed. First, most registers impose their own waiting period between application and registration, so this is not an overnight solution — build the lead time into your lodgement plan. Second, the registration provision in regulation 2.03A does not specify when registration must occur, which means registration completed after lodgement but before decision can still engage the exception. That has real strategic value in a matter where a delegate has raised the duration point.
Registration is not a shortcut around the genuineness assessment. It removes the duration requirement. It does not remove the need to satisfy section 5CB and regulation 1.09A.
Compelling and compassionate circumstances. Regulation 2.03A also contemplates the 12-month requirement not applying where compelling and compassionate circumstances for the grant of the visa can be established. This is a genuinely high bar and it is not made out simply because the couple would prefer not to wait. A child of the relationship is significant and frequently relevant evidence, but it is not expressed in regulation 2.03A as a standalone automatic exception, and it should not be assumed to operate as one.
Where a couple is short of twelve months and cannot register, the honest advice is usually to wait and use the intervening period to build the evidentiary record — not to lodge and hope.
Frequently asked questions
Does the 12-month rule apply to married couples?
No. Regulation 2.03A applies to applicants claiming a de facto relationship. Married applicants must still satisfy section 5F and regulation 1.15A, but there is no minimum duration.
Can we register our relationship in NSW if one of us is overseas?
Registration requirements are set by NSW law and generally include a residence requirement. Check the current requirements with the NSW Registry of Births, Deaths and Marriages before relying on this pathway.
What if we lived together for 12 months but only became exclusive later?
Then the de facto relationship may have commenced later than the cohabitation. The clock runs on the relationship as defined in section 5CB, not on the tenancy.
For more details on partner visa, check out our page on 820/801 and 309/100 partner visa.
Arnela Tolic is the Principal Solicitor of Tolic Lawyers, a Parramatta-based migration and employment law firm, and the NSW Representative for Migration Alliance. Tolic Lawyers advises on onshore subclass 820/801 and offshore subclass 309/100 partner visa applications, including complex de facto and Schedule 3 matters.
Suite 19/103 George Street, Parramatta NSW 2150 | (02) 8077 2562 | www.toliclawyers.con.au
Disclaimer: This article is general information current as at 28 August 2026. It is not legal advice and does not take into account your circumstances. Verify all fees and processing times with the Department of Home Affairs before acting.
