De Facto Partner Visa: The 12-Month Rule and Exceptions

What is the 12-month rule for a de facto partner visa?

A de facto couple must normally have been in the de facto relationship for at least 12 months immediately before the partner visa application is lodged. The requirement sits in regulation 2.03A of the Migration Regulations 1994, and it applies to the partner visa classes listed in paragraph 2.03A(3)(a). In practice that means the Subclass 820 partner visa and the Subclass 801 permanent partner visa applied for in Australia, and the Subclass 309 and Subclass 100 partner visas applied for outside Australia. Three exceptions remove the requirement, and they are set out in full further down this page.

Regulation 2.03A does two things. First, subregulation 2.03A(2) requires both the applicant and the de facto partner to have been at least 18 years old at the time the application was made. That age requirement applies to every visa application involving a claimed de facto relationship, and turning 18 before the decision does not cure a shortfall. Second, for the partner visa classes listed in paragraph 2.03A(3)(a), paragraph 2.03A(3)(b) requires the 12-month relationship period unless the applicant establishes compelling and compassionate circumstances for the grant of the visa, or subregulation 2.03A(4) or 2.03A(5) applies.

The most common error in this area is treating the 12 months as part of the definition of a de facto relationship. It is not. The definition sits in section 5CB of the Migration Act 1958, which asks whether the couple are not married to each other, have a mutual commitment to a shared life to the exclusion of all others, have a genuine and continuing relationship, are living together or at least not living separately and apart on a permanent basis, and are not related by family. The Department's own instruction to decision makers states that it would be an error of law to refuse a visa on the basis that a couple does not meet section 5CB because the relationship existed for less than 12 months. A couple of eight months can be in a de facto relationship for the purposes of section 5CB. What they cannot do is satisfy regulation 2.03A without an exception.

That distinction matters for anyone who has been refused. A refusal that confuses the two questions, or that finds no de facto relationship because the relationship was short, is a refusal built on the wrong test. It is worth reading the decision record closely before deciding what to do about a partner visa refusal.

How the 12 months is counted, and why the lodgement date decides it

The 12 months runs backwards from the date the application is made, not from the date it is decided. This is the single most expensive point in the whole rule. A partner visa application can sit with the Department for a long time, and applicants often assume that time will quietly fill the gap. It does not. Regulation 2.03A is assessed at the time of decision, but the facts it requires, the age of both parties and the length of the relationship, are fixed at the time of application. A couple who lodge at eleven months and wait two years for a decision still lodged at eleven months.

The relationship period must also be the current relationship, running continuously into the application date. Where a couple were together earlier, separated, and then reunited, the clock starts again from the reunion. The Department's instruction gives exactly that example: a couple who were married or living as de facto partners, then divorced or separated, and later resumed the relationship, must still show 12 months immediately before the application. Earlier periods are not added together to reach the total.

Temporary separation within the 12 months is a different matter. A relationship does not stop existing because the couple spent months in different countries, worked away, or were kept apart by visa timing or family obligations. The question is whether the relationship continued through the separation, not whether the couple were in the same house every week. Where there was a real break, however, and the couple were apart because the relationship had ended, that break interrupts the period.

There is a practical consequence that is easy to miss. For an applicant in Australia whose current visa is close to expiring, lodging early to stay lawful can defeat the partner visa itself, while waiting for the 12-month mark can leave the applicant without a substantive visa and facing the Schedule 3 criteria. Neither path is automatically right. The choice depends on the visa held, the expiry date, whether registration is available, and what evidence exists for the relationship start date. It should be made deliberately, before anything is lodged, and not discovered afterwards.

What the 12-month rule does not require

The 12-month rule does not require 12 months of living together. This is the most widely repeated error about de facto partner visas, and it is wrong as a matter of binding authority. In SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69, the Full Court of the Federal Court held that a delegate cannot find that paragraph 5CB(2)(c) is not met solely because the couple never lived together before the application was made, were not living together when the application was made, or were not living together when the application is decided. The Department treats that judgment as binding on its decision makers.

Living together still matters, but it matters in a different place. Evidence that a couple has lived together, and for how long, goes to whether the relationship is genuine and continuing under paragraph 5CB(2)(b), and to the nature of the household under regulation 1.09A(3)(b). An application by a couple who have never lived together cannot be refused for failing paragraph 5CB(2)(c) on that basis alone. It can be refused under paragraph 5CB(2)(b) if the evidence does not otherwise show a genuine and continuing relationship.

One limit applies. Paragraph 5CB(2)(c) requires any separation to be temporary. An applicant who has never lived with the claimed partner and cannot satisfy the decision maker that they intend to live together at some point in the future will not meet that paragraph. There is no fixed timeframe by which the couple must be living together, and each case is assessed on its own facts, but an intention to share a home has to be there and has to be evidenced.

The rule also does not require the relationship to be registered, does not require joint bank accounts, and does not require any particular document to exist. For the four partner visa subclasses, regulation 1.09A(3) requires the decision maker to consider the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the couple's commitment to each other. Those four matters are considered together. They are not a checklist to be scored, and a visa cannot lawfully be refused on the basis that one of the four matters is not met.

Registering the relationship removes the 12-month requirement

Registering a de facto relationship under a prescribed State or Territory law removes the 12-month requirement entirely. Subregulation 2.03A(5) provides that the minimum relationship period does not apply if the de facto relationship is registered under a State or Territory law prescribed for that purpose. This is the cleanest of the three exceptions, because it does not depend on persuading a decision maker of anything. Either the relationship is registered or it is not.

There is a second point that is far less well known and is worth more than the first. Subregulation 2.03A(5), unlike subregulation 2.03A(3), does not say when the relationship must be registered. Department policy is explicit that an applicant who registers the relationship after the application is made, but before it is decided, is taken to have met subregulation 2.03A(5). A couple who lodged early and are now sitting on an application that does not meet the 12-month rule are not necessarily out of options. Registration afterwards can still answer the problem, provided the scheme in their State or Territory is open to them.

Once valid evidence of registration is produced, the Department accepts that subregulation 2.03A(5) is met. Its instruction to decision makers states that delegates cannot impose additional criteria on an applicant who produces valid evidence of a registered relationship, such as a registration certificate. The reason is straightforward. Regulation 2.03A is only reached after the couple has already been accepted as being in a de facto relationship under section 5CB, so the registering authority's own process is beside the point.

Where relationship registration is available

The prescribed laws are those of New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory. The relevant schemes are a registered relationship under Part 2 of the Relationships Register Act 2010 (NSW), a registrable domestic relationship under Part 2.2 of the Relationships Act 2008 (Vic), a civil partnership entered into under sections 4 and 5 of the Civil Partnerships Act 2011 (Qld), a registered relationship under Part 2 of the Relationships Register Act 2016 (SA), a significant relationship for which a deed of relationship may be registered under Part 2 of the Relationships Act 2003 (Tas), a civil partnership under sections 37C and 37D of the Domestic Relationships Act 1994 (ACT), and a civil union registered under section 32A of the Births, Deaths and Marriages Registration Act 1997 (ACT).

Western Australia and the Northern Territory are not on that list. A couple living in Perth or Darwin cannot register a relationship under a prescribed law in their own jurisdiction, and this exception is simply unavailable to them where they are. Each State and Territory scheme sets its own eligibility and residence rules, so whether a particular couple can register anywhere at all is a question to be checked against the scheme itself before any plan is built on it.

What registration does not do

Registration removes the 12-month requirement. It does nothing else. It is not evidence that the relationship is genuine and continuing, it does not satisfy section 5CB, and it does not reduce the evidence the couple needs to provide about their finances, household, social circumstances and commitment. A registered relationship supported by a thin evidence file is still a partner visa application at risk of refusal, and the refusal will be under section 5CB rather than regulation 2.03A.

Timing also has to be handled carefully. A receipt showing that an application for registration has been lodged is not sufficient for subregulation 2.03A(5). The relationship must actually be registered. Most schemes impose a cooling off period between application and registration, so a couple relying on registration should work backwards from that period rather than assume the certificate will arrive when it is needed.

Compelling and compassionate circumstances

Compelling and compassionate circumstances are a genuine exception, but the threshold is high and it is rarely met. Paragraph 2.03A(3)(b) removes the 12-month requirement where the applicant establishes compelling and compassionate circumstances for the grant of the visa. Neither word is defined in the Act or the Regulations, so both take their ordinary meaning, and the Department's position is that the circumstances must be both compelling and compassionate, not one or the other.

The two examples given in departmental policy are a dependent child of the relationship, and cases where de facto relationships are illegal in the country in which one or both of the couple reside. The second of those matters a great deal to couples who cannot live openly where they are, and it is one of the reasons the exception exists at all. It is directly relevant to many same-sex and LGBTIQ+ partner visa applications, where the couple's home country criminalises the relationship and a registered relationship in Australia is not available to them.

Two things do not meet the threshold. Pregnancy at the time the application is made is not accepted as compelling and compassionate on its own, although the Department acknowledges that exceptional or unique circumstances relating to a pregnancy may be. And the genuineness of the relationship is never enough by itself. Every applicant who reaches regulation 2.03A has already been accepted as being in a genuine de facto relationship, so genuineness cannot also be the reason to waive the period. Applications that argue nothing more than the strength of the relationship are arguing the wrong point.

The applicant is entitled to be given the opportunity to explain why the 12-month period should not be applied. That opportunity is worth taking seriously and worth taking early. A short, evidenced submission lodged with the application is worth far more than a response written after a decision maker has already formed a view.

When a partner holds or has applied for a permanent humanitarian visa

Subregulation 2.03A(4) removes the 12-month requirement in two humanitarian situations. Under paragraph 2.03A(4)(a), the period does not apply where the applicant is in a de facto relationship with a current or former holder of a permanent humanitarian visa, and that person informed the Department of the relationship before the humanitarian visa was granted. Under paragraph 2.03A(4)(b), the period does not apply where the applicant is in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.

Both limbs turn on departmental records rather than on documents the couple holds. Decision makers are instructed to check those records themselves. The practical burden falls on the earlier disclosure: paragraph 2.03A(4)(a) works only if the relationship was declared before the humanitarian visa was granted. Where a relationship was not declared at that time, this exception is unlikely to assist, and the couple's position needs to be built on the 12-month period or on one of the other exceptions.

Marrying before the decision removes regulation 2.03A entirely

Marriage takes the couple out of regulation 2.03A. If the couple marry after the application is made but before it is decided, section 5CB no longer applies, because they are no longer in a de facto relationship. The relationship is assessed at the time of decision under section 5F of the Migration Act 1958 as a married relationship, and the additional criteria in regulation 2.03A, including the 12-month period, fall away.

This is a consequence of how the provisions are drafted, not a strategy to be adopted lightly. The marriage must be valid and recognised under Australian law, and the relationship still has to satisfy section 5F, which asks substantially the same questions about mutual commitment, genuineness and living arrangements. Marrying does not lower the evidentiary bar on a Subclass 820 application or on a Subclass 309 offshore partner visa. It removes one specific obstacle, and only that one.

Which visa applications the 12-month rule does not touch

The 12-month rule applies only to the visas listed in paragraph 2.03A(3)(a). For every other visa, there is no prescribed minimum relationship period that a de facto partner has to meet. A de facto partner included as a member of the family unit on a student, skilled or employer sponsored application does not have to show 12 months, and a decision maker cannot impose that period on them.

Two requirements still travel with every application. Section 5CB applies to all applicants, primary or secondary, who claim to be in a de facto relationship, so the relationship must still be genuine, continuing, mutually exclusive and not one of permanent separation. And subregulation 2.03A(2), the requirement that both parties were at least 18 when the application was made, applies to all visa applications without exception.

The Subclass 300 prospective marriage visa sits outside this entirely. It is not a de facto visa, so the 12-month period has no work to do there. That visa turns on an intention to marry within the visa period and on the couple having met in person as adults. Couples who cannot reach 12 months and cannot register a relationship sometimes ask whether the prospective marriage route is open to them instead. It is a different application with different criteria, and it is worth assessing properly rather than as a fallback.

Proving that the relationship existed for 12 months

The 12-month period is proved by fixing a start date and evidencing the relationship on both sides of it. Decision makers are not looking for a single document that declares the date. They are looking for whether the evidence supports the date the applicant has claimed, and whether the relationship described in the application is visible in the records from that point onwards.

The four matters in regulation 1.09A(3) are the framework. The financial aspects of the relationship include joint ownership, joint liabilities, the pooling of resources and the basis on which day to day household expenses are shared. The nature of the household includes joint responsibility for children, the living arrangements and the sharing of housework. The social aspects include whether the couple represent themselves to others as being in a de facto relationship, the opinions of friends and family, and joint social activities. The nature of the commitment includes the duration of the relationship, the length of time the couple have lived together, the companionship and emotional support they draw from each other, and whether they see the relationship continuing long term.

For the 12-month question specifically, the most useful evidence is whatever brackets the claimed start date. A lease or a change of address, an account opened jointly, correspondence addressed to both parties at the same address, a declaration of the relationship to another government body or an employer, travel taken together, and Form 888 statements from people who knew the couple at that time all carry weight because they are dated and were created for another purpose. Where the laws or traditions of the applicant's home country discourage the couple from acknowledging the relationship openly, decision makers are instructed to take that into account, and the application should say so rather than leave the gap unexplained.

The start date must be one the evidence can carry. Claiming an earlier start date to clear the 12 months, when nothing in the file supports it, creates an inconsistency the Department will find, and it puts the credibility of the whole application at risk. A shorter relationship with a properly argued exception is a far stronger application than a longer one that cannot be evidenced.

How My Migration Lawyers approaches a de facto partner visa

My Migration Lawyers is an Australian immigration law firm, and partner visas are one of its two main areas of work. On a de facto matter, the firm's task before anything is lodged is to establish where the couple actually stands against regulation 2.03A, because that assessment drives every decision that follows.

That work involves fixing the relationship start date against the documents the couple holds rather than against recollection, and testing whether the 12-month period is met at the proposed lodgement date. Where it is not, the firm advises on which of the exceptions is genuinely available: whether a registered relationship can be obtained in the couple's State or Territory and whether registering before or after lodgement is the better course, whether the circumstances can properly be put as compelling and compassionate, or whether one of the humanitarian limbs of subregulation 2.03A(4) applies. Where an applicant in Australia is close to a visa expiry, that advice also has to deal with the Schedule 3 consequences of waiting.

The relationship evidence itself is the client's. The firm reviews what the couple holds, identifies what is missing against the four matters in regulation 1.09A(3), and presents the client's own account and documents in the form the law requires. The relationship statement is the client's own evidence, prepared from what the client tells the firm and reviewed and corrected by the client before it is filed, and the client decides which claims are advanced. Weiwei Zhang, Principal Lawyer, is the lawyer responsible for the firm's partner visa work.

Consultations are held by video and the firm acts for clients across Australia and overseas. If the 12-month rule is the question in your matter, you can read more about how the firm works on partner visa applications, read about Weiwei Zhang, or request a consultation and set out where your relationship started and when you are hoping to lodge.