4.2 Relationship Evidence and the 12-Month De Facto Rule

4.2 Relationship Evidence and the 12-Month De Facto Rule

Key Statutory Authorities: Migration Act 1958 (Cth) ss 5F, 5CB; Migration Regulations 1994 (Cth) Regulations 1.15A, 2.03A; Acts Interpretation (Registered Relationships) Regulations 2008.

Establishing that a marital or de facto relationship is genuine and continuing is the substantive core of every Partner visa application. Decision-makers assess relationships against specific statutory definitions set out in the Migration Act 1958 and the mandatory evidentiary framework known as the Four Pillars, codified in Regulation 1.15A of the Migration Regulations 1994.

1. Statutory Definitions: Spouse (s 5F) vs De Facto Partner (s 5CB)

The Migration Act 1958 draws a precise legal distinction between married spouses and de facto partners, though both require proof of mutual commitment and exclusivity.

The Legal Concept of "Not Living Separately and Apart on a Permanent Basis"

Both Section 5F(2)(c) and Section 5CB(2)(c) recognize that physical separation does not automatically destroy a relationship. As affirmed in He v Minister for Immigration and Ethnic Affairs (2000), decision-makers must distinguish between couples who live apart permanently and couples who live apart temporarily due to unavoidable circumstances such as overseas employment postings, military service, illness, educational commitments, or visa constraints. Where physical cohabitation is interrupted, the couple must produce robust objective evidence demonstrating continuous emotional, financial, and digital communication during the period of separation.

2. The Four Evidentiary Categories: Regulations 1.15A and 1.09A

For a spouse assessment, regulation 1.15A requires consideration of all circumstances, including financial, household, social, and commitment matters. Regulation 1.09A provides the corresponding arrangements for determining a de facto relationship. The categories organise evidence; no single document or numerical quota proves the relationship.

                    THE FOUR PILLARS (Regulation 1.15A)
  +-------------------------------------------------------------------+
  | 1. FINANCIAL ASPECTS (reg 1.15A(3)(a))                            |
  |    - Joint ownership of real estate or major assets               |
  |    - Joint liabilities (mortgages, loans, vehicle leases)         |
  |    - Active joint bank accounts showing daily household spending  |
  |    - Shared living expenses and mutual financial obligations      |
  +-------------------------------------------------------------------+
  | 2. NATURE OF THE HOUSEHOLD (reg 1.15A(3)(b))                      |
  |    - Joint residential leases or title deeds                      |
  |    - Joint utility accounts (electricity, gas, water, internet)   |
  |    - Shared care and support of children                          |
  |    - Division of domestic chores and household responsibilities   |
  +-------------------------------------------------------------------+
  | 3. SOCIAL ASPECTS (reg 1.15A(3)(c))                               |
  |    - Recognition by family and friends (Form 888 declarations)    |
  |    - Joint social, cultural, and sports participation             |
  |    - Joint travel bookings, boarding passes, and hotel invoices   |
  |    - Public presentation as a couple on official records          |
  +-------------------------------------------------------------------+
  | 4. NATURE OF COMMITMENT (reg 1.15A(3)(d))                         |
  |    - Duration of the relationship and mutual emotional support    |
  |    - Knowledge of each other's personal background and affairs    |
  |    - Long-term intentions (wills naming each other, super death)  |
  |    - Evidence of communication during periods of separation       |
  +-------------------------------------------------------------------+

Pillar 1: Financial Aspects (Reg 1.15A(3)(a))

Decision-makers evaluate the extent of financial pooling and interdependence. High-value evidence includes:

• Joint bank accounts opened months or years in advance that demonstrate active, regular transactions reflecting real everyday expenditures (groceries, rent, fuel, entertainment);
• Real estate purchase contracts, mortgages, or vehicle finance in joint names;
• Legal commitments where one party acts as guarantor for the other;
• Naming each other as beneficiaries under private health insurance policies.

Evidentiary Pitfall: A "cosmetic" joint bank account opened two weeks prior to visa lodgement with zero transaction history, or only lump-sum transfers made solely to create an appearance of pooling, carries negligible evidentiary weight.

Pillar 2: Nature of the Household (Reg 1.15A(3)(b))

This pillar assesses the physical domestic arrangements under which the couple resides:

• Formal residential tenancy agreements showing both parties as co-tenants, endorsed by a licensed real estate agency;
• Municipal council rates notices or land title deeds naming both partners;
• Utility bills (electricity, water, gas, broadband) addressed to both parties at the residential premises;
• Joint correspondence from government entities (ATO, Medicare, electoral commission);
• Statements detailing how domestic labor (cleaning, cooking, maintenance) is equitably divided.

Pillar 3: Social Aspects (Reg 1.15A(3)(c))

Social recognition establishes that the couple is accepted by the community as a committed unit:

• Independent supporting evidence: Third-party statements can corroborate social recognition, but the required form and number depend on the application and the applicant’s status. Current Home Affairs instructions for certain onshore subclass 820 applicants without a substantive visa require at least two recent Commonwealth statutory declarations from eligible witnesses and expressly say Form 888 is not a statutory declaration. Check the current subclass checklist instead of treating two Form 888s as a universal statutory rule;
• Photographs taken across different dates, seasons, and social gatherings with family and friends;
• Invitations addressed jointly to the couple for weddings, birthdays, and community events;
• Joint memberships in sporting clubs, gyms, or community organizations.

Pillar 4: Nature of the Persons' Commitment (Reg 1.15A(3)(d))

This pillar probes the psychological, emotional, and legal depth of the union:

• Detailed personal statutory declarations from each partner outlining the history of the relationship, shared future goals, plans for buying property or raising children, and significant life milestones;
• Objective legal commitments: Wills drafted and executed under state succession laws naming each other as principal beneficiaries and executors;
• Binding Death Benefit Nominations (BDBN) on superannuation policies naming the partner as a financial dependant;
• Detailed phone call records, encrypted messaging histories, and video logs documenting frequent contact during unavoidable physical separations.

3. The 12-Month De Facto Relationship Rule and Exceptions

Regulation 2.03A(3) ordinarily requires an applicant in a listed visa class to have been in the de facto relationship for the 12 months ending immediately before application. It tests the relationship's duration, not uninterrupted physical cohabitation. Sections 5CB and regulation 1.09A still require living together or not living separately and apart permanently. Temporary separation can be consistent with an ongoing relationship where evidence shows continuing commitment, communication, shared affairs, and an intention to resume living together.

The rule does not apply in the circumstances specified by regulation 2.03A, including compelling and compassionate circumstances or a relationship registered under a prescribed State or Territory law where the applicable requirements are met. Registration is not retroactive proof of every relationship element, and a pending application is not a completed registration. Western Australia and the Northern Territory do not presently provide a prescribed registered-relationship route for this exception.

An exception removes only the 12-month obstacle. The applicant must still prove the section 5CB relationship and the particular Schedule 2 criteria. “Dating for 12 months” is not necessarily a de facto relationship, but a joint lease is not the only possible starting point. Determine when the statutory relationship began from all circumstances and record the analysis.

4. Worked Capstone Case Scenario

Scenario: Tariq (an Australian citizen) and Maria (a Spanish national holding a Working Holiday Subclass 417 visa) have lived together in an apartment in Sydney for 7 months. Maria's Subclass 417 visa expires in 3 weeks. They want to lodge an onshore Partner (Subclass 820/801) visa immediately.

Tariq asks: "We have only lived together for 7 months. Can we register our relationship in NSW, and does that guarantee our visa will be granted?"

Legal Assessment and Professional Advice:

1. Operation of Regulation 2.03A: Because the facts show their de facto relationship has existed for only 7 months, the ordinary 12-month criterion in regulation 2.03A(3) is not met. The application may still be valid, but the relationship criterion would fail unless an exception is established.
2. Registered-relationship exception: NSW is a recognized jurisdiction under the Relationships Register Act 2010. Registering their relationship with NSW BDM exempts them from the 12-month relationship requirement. However, NSW BDM imposes a mandatory 28-day cooling-off period before the registration certificate is issued. Because Maria's visa expires in 3 weeks (21 days), the certificate will not be issued prior to her visa expiry.
3. Strategic Solution: They should not lodge on the assumption that a pending registration satisfies the exception. The agent must verify the effective date of registration, Maria’s visa expiry and conditions, and every lawful-status option without assuming a Visitor visa will be valid, granted, or free of a further-stay condition. Lodgement before the exception is established can produce refusal even though the application itself is valid.
4. Evidentiary Standard across the Four Pillars: A qualifying registration displaces the 12-month duration rule; it does not exempt the couple from proving a genuine and continuing relationship under Section 5CB and Regulation 1.15A. They must still submit comprehensive evidence across all four pillars (financial pooling, household bills, Form 888 declarations, and mutual commitment).