De Facto Visa Lawyer: Proving Your Relationship Without Marriage

Written by
Weiwei Zhang, Principal Lawyer at My Migration Lawyers
Weiwei Zhang
Principal Lawyer
Published
October 14, 2026
37 min read
Reading Time
37 min read
Table Of Contents

Key Takeaways

  • A de facto visa lawyer proves that an unmarried couple meets the definition of a de facto relationship in section 5CB of the Migration Act 1958 and, for first stage partner visas, the 12-month rule in regulation 2.03A of the Migration Regulations 1994 or one of its exceptions.
  • Registering the relationship under a prescribed State or Territory law removes the 12-month requirement, and the registration can be completed after lodgement as long as it happens before the decision. A receipt for a registration application is not enough.
  • A couple who have never lived together, or who live apart, cannot be refused only on the "living together" element, but they must show the separation is temporary and that they intend to live together.
  • The Department must weigh the financial aspects, the nature of the household, the social aspects and the nature of the commitment together. Each aspect is assessed, and it is not a scorecard.
  • Same-sex de facto couples are assessed under exactly the same law as other couples, and a refusal for a "not genuine" relationship can be taken to the Administrative Review Tribunal within strict time limits.

A de facto visa lawyer helps an unmarried couple prove to the Department of Home Affairs that their relationship is a genuine de facto relationship under Australian migration law. My Migration Lawyers acts as a de facto visa lawyer for couples applying for the onshore Subclass 820 partner visa and the offshore Subclass 309 partner visa on the basis of a de facto relationship rather than a marriage.

The work is not form filling. A de facto visa lawyer has to show that the couple fits the legal definition in section 5CB of the Migration Act 1958, that the 12-month rule in regulation 2.03A of the Migration Regulations 1994 is met or an exception applies, and that the evidence across the four assessed aspects of the relationship holds together. This article explains what a de facto visa lawyer at My Migration Lawyers does at each of those points, where de facto applications go wrong, and what to expect if you engage the firm. For the general law on unmarried couples, the firm's guide to the de facto partner visa and the 12-month rule sets out the background, and the complete guide to partner visas covers every subclass.

What does a de facto visa lawyer do?

A de facto visa lawyer assesses whether your relationship meets the legal definition of a de facto relationship, decides how the application should be framed, prepares the evidence and submissions, lodges the application and deals with the Department until a decision is made. If the application is refused, the same de facto visa lawyer can advise on review.

At My Migration Lawyers, the principal, Weiwei Zhang, oversees the firm's partner visa practice. In a de facto matter the firm's work usually covers:

  • Eligibility assessment. Testing the relationship against each element of section 5CB and against regulation 2.03A before anything is lodged.
  • Strategy. Deciding whether to lodge now, register the relationship first, argue compelling and compassionate circumstances, or wait until the 12 months has passed.
  • Evidence. Identifying what evidence exists across the financial, household, social and commitment aspects of the relationship, and what gaps need to be explained.
  • Statements. Helping each partner prepare one relationship statement in their own words, and advising on Form 888 statements from supporting witnesses.
  • Lodgement. Preparing and lodging the visa application and the sponsorship, and making sure the sponsor's part is completed on time.
  • Department correspondence. Responding to requests for further information under section 56 and to adverse information letters under section 57.
  • Review. Advising on, and acting in, an application to the Administrative Review Tribunal (ART) if the Department refuses the visa.

Couples who want an overview of the firm's broader service should read the partner visa lawyers page. The rest of this article focuses on the parts of the work that are specific to de facto couples.

Why de facto couples need a different approach from married couples

Migration law gives equal recognition to married and de facto relationships. The Department's own procedural instruction says so. The difference is in what has to be proved. A married couple starts with a marriage certificate that is recognised under the Marriage Act 1961. A de facto couple has no single document that proves the relationship exists. The whole case is built from the facts of the relationship.

That is why a de facto visa lawyer spends more time on the start date of the relationship, the history of living arrangements, any previous relationships, and the way the couple presents itself to family and friends. The firm's answer on the difference between a spouse visa and a de facto visa explains the practical effect of that difference.

De facto visa lawyer assessment: does your relationship meet section 5CB?

Yes, if you and your partner 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, live together or do not live separately and apart on a permanent basis, and are not related by family. Those are the elements of section 5CB(2), and a de facto visa lawyer tests each one before lodgement.

The firm's short answer on the legal definition of a de facto relationship lists the elements. In practice, a de facto visa lawyer looks at each element through the facts of your relationship, because each one can fail for different reasons.

Not married to each other, but possibly married to someone else

A de facto relationship cannot exist between two people who are married to each other. If you marry your partner after lodging, the Department assesses you as spouses instead, and the de facto requirements in regulation 2.03A no longer apply. The firm's answer on marrying after applying as de facto partners explains what has to be reported.

The more common problem is a partner who is still married to someone else. Department policy confirms that section 5CB can still be met where one partner remains legally married to a third person, provided the Department is satisfied that the earlier relationship has ended, even if the marriage itself has not. Policy also accepts that a divorce may be difficult or impossible in some countries. A de facto visa lawyer will gather evidence of the separation, the reasons a divorce has not been finalised, and the exclusivity of the current relationship. The firm's guide to a partner visa while married to someone else covers this situation in more detail.

Mutual commitment and a genuine and continuing relationship

The Department must be satisfied that the relationship is mutually exclusive and that it is genuine and continuing. These two elements are where most de facto refusals sit. The Department considers all the circumstances of the relationship, including documents, Form 888 statements, any interview and any information received from third parties. The firm's guide to the genuine and continuing relationship test explains how decision makers apply it.

Department policy also says that if either partner was in a relationship with someone else close to the 12 months before the application, that may be relevant to whether the current relationship is a de facto relationship at all. A de facto visa lawyer will ask about previous relationship history early, because an overlap that is not explained is one of the fastest ways to attract doubt.

Related by family, and the age requirement

Section 5CB(4) prevents a de facto relationship between a parent and child, between a person and their descendant, and between people who have a parent in common, including through adoption. The firm's answer on whether partners who are related can get a de facto visa deals with relationships outside those prohibited degrees.

Separately, regulation 2.03A(2) requires both partners to have been at least 18 years old when the visa application was made. Department policy is clear that this cannot be cured by turning 18 before the decision.

The 12-month rule: how a de facto visa lawyer tests regulation 2.03A

For a first stage partner visa, the de facto relationship must have existed for at least 12 months immediately before the application was made, unless an exception applies. A de facto visa lawyer treats this as a separate test from section 5CB, because a couple can be genuine de facto partners and still fail regulation 2.03A.

Department policy makes that distinction expressly. Regulation 2.03A is assessed only after the Department is satisfied that section 5CB is met, and it is assessed at the time of decision. Policy states that it would be an error of law to find that a couple is not in a de facto relationship under section 5CB only because the relationship existed for less than 12 months. A de facto visa lawyer who sees a refusal mixing those two tests will look closely at whether the decision is legally sound. The firm's article asking whether you really need 12 months of de facto relationship for a Subclass 820 visa explores the rule in more depth.

When does the 12 months start?

The 12 months runs back from the date the application is made. It does not start when you first met, and it does not necessarily start on the day you moved in together. It starts when the de facto relationship began, which is a question of fact. The firm's answer on when the 12-month de facto period starts explains the factors.

Department policy says the 12 months must be immediately before the application, even if the couple had an earlier period together. A couple who separated and then reunited must show 12 months from the reunion, unless an exception applies. The firm's answers on whether time apart breaks the 12-month requirement, couples who broke up and got back together and whether living together overseas counts deal with the common variations.

Exception one: relationship registration

The 12-month requirement does not apply if the relationship is registered under a State or Territory law prescribed for this purpose. The prescribed laws are the registers in New South Wales, Victoria, Queensland (civil partnerships), South Australia, Tasmania and the Australian Capital Territory (civil partnerships and civil unions). A de facto visa lawyer will check that the registration is of the prescribed kind.

Three practical points from Department policy matter here:

  • Timing. Regulation 2.03A(5) does not say when the relationship must be registered. An applicant who registers after the application is made, but before it is decided, is taken to meet the exception.
  • Proof. A receipt showing that an application for registration has been lodged is not sufficient. The relationship must actually be registered.
  • No extra conditions. Where valid evidence of registration is produced, delegates cannot impose additional criteria to be satisfied that the exception is met.

Registration does not prove the relationship is genuine. It only removes the 12-month requirement. Section 5CB must still be satisfied on the evidence. The firm's answers on whether you have to register a de facto relationship, registering after lodging and lodging while registration is still processing explain the strategy, and there are State guides for registering in NSW, registering in Victoria and registering in Queensland. An overseas registration is a different question, covered in the answer on overseas registered relationships.

Exception two: compelling and compassionate circumstances

The 12-month requirement also does not apply if the applicant establishes compelling and compassionate circumstances for the grant of the visa. Department policy describes this as a high threshold. The circumstances must be both compelling and compassionate.

Policy gives two examples that may qualify: where the applicant has a dependent child of the relationship, and where de facto relationships are illegal in the country where one or both partners live. Policy also says that pregnancy at the time of application is not, of itself, enough, although there may be exceptional circumstances around a pregnancy. And policy says that the genuineness of the relationship does not, on its own, amount to compelling and compassionate circumstances.

That last point is where many self-prepared applications fail. A strong relationship is the starting point, not the exception. A de facto visa lawyer will build the argument around specific circumstances and evidence, and will make sure the applicant is given the opportunity to put that case, which policy says should happen in all cases. The firm's guide to partner visa compelling and compassionate circumstances gives further examples, and the article on partner visa pregnancy covers that situation.

Exception three: humanitarian visa holders and applicants

Regulation 2.03A(4) removes the 12-month requirement where the sponsoring partner holds, or held, a permanent humanitarian visa and told the Department about the relationship before that visa was granted, or where the partner is an applicant for a permanent humanitarian visa. Policy says these facts should be checked against Department records, so a de facto visa lawyer will confirm what the Department was told and when.

Which visas the 12-month rule applies to

Regulation 2.03A(3) applies the 12-month rule only to the visas listed in it. Department policy says that for visas not listed, the 12-month requirement does not apply. The rule is a first stage issue for the Subclass 820 and Subclass 309 visas. Couples who are not yet in a de facto relationship, and who intend to marry, may need the Subclass 300 prospective marriage visa instead. The firm's answer on whether you can apply before living together for 12 months sets out the options, and the answer on whether a de facto visa can be refused for not meeting the 12-month rule explains what happens when the rule is missed.

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Living together or not living separately and apart: how a de facto visa lawyer handles living arrangements

A de facto couple does not have to be living together at the time of application to meet section 5CB(2)(c). The paragraph requires the couple to live together or not live separately and apart on a permanent basis. A de facto visa lawyer will focus on proving that any separation is temporary and that the couple intends to live together.

The Full Court of the Federal Court decided in SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 that a delegate cannot find that paragraph 5CB(2)(c) is not met only because the couple never lived together before the application, were not living together when the application was made, or were not living together when it was decided. Department policy records that this judgment binds delegates.

That does not make living arrangements irrelevant. Department policy says two further things. First, the onus is on the applicant to satisfy the delegate that the separation is temporary and that the couple will, at some point, live together. There is no fixed timeframe, and each case is considered on its facts. Second, an application by a couple who have never lived together cannot be refused under paragraph (c), but it may be refused under paragraph (b), the genuine and continuing test, depending on all the circumstances.

What a de facto visa lawyer does when you live apart

When a couple lives apart, a de facto visa lawyer will build the explanation as carefully as the evidence. That usually means:

  • Reasons. Setting out why the couple lives apart, such as work, study, visa restrictions, caring responsibilities, cultural or religious expectations, or travel restrictions.
  • Consistency with commitment. Policy asks whether the reasons for a temporary separation are consistent with a mutual commitment to each other. The explanation must show that they are.
  • Contact. Evidence of regular communication and visits, organised so that it shows a pattern rather than a pile of screenshots.
  • Plans. Concrete evidence of the plan to live together, such as a lease, a job offer, travel bookings or arrangements for children.

The firm has published guides on partner visas without living together, intermittent cohabitation, living apart for work and long-distance relationships. The answers on what counts as living together, cultural or religious reasons for not living together and whether a lawyer can help couples who have never lived together deal with specific situations.

Living with family or in shared housing

Some de facto couples live with parents, relatives or housemates. That is not a problem in itself, but it changes the household evidence. A de facto visa lawyer will look for proof that the couple functions as a unit within the shared home, such as shared bills, a shared room, shared responsibilities and correspondence at the same address. The guide on living with parents and the article on informal living arrangements explain the approach.

Evidence across the four assessed aspects: what a de facto visa lawyer prepares

For a partner visa, the Department must consider four matters in regulation 1.09A(3): the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons' commitment to each other. A de facto visa lawyer organises the evidence around those four assessed aspects, because a refusal decision must, as a minimum, address all four.

Department policy is explicit that this is not a counting exercise. A delegate must not decide the case by comparing how many matters are satisfied against how many are not. The delegate must consider the relationship against all four matters, take into account any other relevant information, and decide on balance whether a de facto relationship exists. The four matters are circumstances to be considered, not criteria that must each be satisfied. The firm's overview of the four pillars of partner visa evidence explains why each aspect matters.

Financial aspects

Policy lists joint ownership of real estate or major assets, joint liabilities, the extent of pooling of financial resources, any legal obligation one partner owes the other, and the basis for sharing day-to-day household expenses. Policy says joint bank accounts used with reasonable frequency over a reasonable period carry more weight than recently opened accounts with few transactions.

Importantly, policy also notes that some couples keep separate accounts. In that case, the evidence should show spending on shared costs such as rent, utilities or a mortgage. A de facto visa lawyer will not tell you to open a joint account the week before lodging. The firm will help you show how your money actually works. See the guides on financial aspects of the relationship, separate finances and partner visas without a joint bank account.

Nature of the household

Policy refers to joint responsibility for children, the living arrangements of the couple, and the sharing of housework. Examples include joint ownership or leases, joint utility accounts, and correspondence to both partners at the same address. Where there is no joint lease, other evidence fills the gap. The guides on the nature of the household and partner visas without a joint lease explain the alternatives.

Social aspects

Policy asks whether the couple represents itself to others as being in a de facto relationship, what friends and acquaintances think of the relationship, and whether the couple plans and undertakes joint social activities. Declarations to government bodies and institutions are relevant, as are joint travel and plans for the future.

Policy also says delegates should take into account the extent to which the laws or traditions of the applicant's home country may discourage the couple from openly admitting the relationship. That matters for same-sex couples and for couples from conservative families, and a de facto visa lawyer will raise it directly where it applies. See the guide on social aspects of the relationship.

Nature of the commitment

Policy assesses the mutuality of the commitment by reference to the duration of the relationship, the length of time the couple has lived together, the companionship and emotional support they draw from each other, and whether they see the relationship as long term. Knowledge of each other's personal circumstances and evidence of long-term intentions, such as wills and superannuation nominations, are relevant. Policy stresses that duration is only one part of the commitment assessment. The guide on the nature of commitment explains what decision makers look for.

Form 888 statements and the relationship statement

Each partner prepares one relationship statement, in their own words, telling the history of the relationship and covering all four aspects within it. Supporting witnesses provide Form 888 statements. A de facto visa lawyer reviews both so that dates, places and events are consistent across every document.

There is no separate financial, household, social or commitment statement. Those topics are parts of the one relationship statement. The statement is the applicant's and the sponsor's own evidence, reviewed and corrected by them. My Migration Lawyers helps each partner present their account clearly and in the form the law requires. The firm's guide on how to write a relationship statement gives the structure.

Form 888 is the Department's form for a supporting witness, usually a friend or family member who knows the couple. Department policy encourages these statements for the social aspects of the relationship. A Form 888 statement is evidence from a witness. It is not a statutory declaration, and the two should not be confused, because a statutory declaration is required only in specific circumstances. The firm's guides explain what a Form 888 is and who can make one, Form 888 witness statements, who can sign a Form 888, how many Form 888s are needed, what a Form 888 should say and whether a lawyer can help with Form 888 statements.

Why consistency is the de facto visa lawyer's main concern

The single most damaging problem in a de facto application is inconsistency. If the sponsor's statement says the couple moved in together in March, the lease says May, and a witness says the couple met at a wedding that took place after the move, the Department will doubt the whole relationship. A de facto visa lawyer cross-checks the application forms, both statements, every Form 888, the relationship timeline and the documents before lodgement. The firm's article on conflicting statements explains how the Department treats inconsistencies, and the guide on partner visa interview questions shows why consistency matters again at interview.

Short relationships and limited evidence: where a de facto visa lawyer matters most

A short relationship or a thin evidence file does not make a de facto visa application impossible, but it raises the risk of refusal. This is where a de facto visa lawyer adds the most value, because the case depends on explanation, strategy and the quality of the evidence rather than its quantity.

There is no minimum relationship length in section 5CB itself. Duration is one factor within the commitment assessment. The 12-month rule in regulation 2.03A is a separate requirement for the first stage, and it can be met through registration or the other exceptions. A couple who has been together for 14 months and registered their relationship may still face more scrutiny than a couple of five years, simply because there is less history to show.

How the firm approaches a short or thinly evidenced relationship

When the relationship is short or the evidence is limited, a de facto visa lawyer at My Migration Lawyers will usually:

  • Identify the real reasons for the gaps. Couples may have limited joint finances because one partner is studying, has recently arrived, or comes from a culture where finances are kept separately. Each reason needs evidence.
  • Use evidence that couples overlook. Travel records, messages, photographs with dates and locations, shared subscriptions, insurance nominations, and evidence of supporting each other through illness or family events can all be relevant.
  • Present the history clearly. A short relationship that is presented as a clear, consistent and well-documented story is more persuasive than a long one presented as a stack of unexplained documents.
  • Consider timing. Sometimes the right advice is to register the relationship first, or to wait until the 12 months has passed. A de facto visa lawyer should tell you that honestly rather than lodge a weak application.

The firm's guides on short relationships, limited evidence, weak partner visa evidence, minimum relationship length, chat evidence and couples who met online deal with these issues. The answer on using evidence from before you lived together is also relevant for newer relationships.

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Same-sex couples and a de facto visa lawyer

Same-sex de facto couples are assessed under exactly the same law as opposite-sex couples. Section 5CB(1) provides that a de facto relationship can exist between partners of the same sex or a different sex. A de facto visa lawyer acting for a same-sex couple applies the same tests, but often has to deal with additional evidence issues.

The Same-sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 amended the Migration Act to give same-sex de facto and registered relationships the same recognition as opposite-sex relationships. Department policy records that change. In practice, the legal test is identical. The difference lies in the history of the relationship and the evidence that is available.

Many same-sex couples have kept their relationship private from family, employers or the community, sometimes for safety reasons. Department policy on the social aspects of the relationship says delegates should take into account the extent to which the laws or traditions of the applicant's home country may discourage a couple from openly admitting the relationship. And Department policy on compelling and compassionate circumstances gives, as an example, cases where de facto relationships are illegal in the country where one or both partners live. A de facto visa lawyer will consider both points where they apply.

My Migration Lawyers acts for LGBTI couples through its LGBTI partner visa service. The firm's answers on whether same-sex couples can get a de facto visa, whether a lawyer can help with a same-sex partner visa, legal help for LGBTI couples and applying where a same-sex relationship was kept private for safety explain the approach. The guide on a secret relationship is also relevant where the relationship has not been disclosed to family.

Refused as "not genuine": what a de facto visa lawyer does next

If the Department refuses a de facto partner visa because it is not satisfied the relationship is genuine and continuing, the refusal can usually be reviewed by the Administrative Review Tribunal. A de facto visa lawyer will read the decision record, identify what the delegate actually found, and prepare the evidence and submissions the Tribunal needs to decide the case afresh.

Before a refusal: section 56 and section 57 letters

The best time to deal with doubt is before a decision is made. The Department may ask for more information under section 56, or invite comment on adverse information under section 57. Both letters have short deadlines. A de facto visa lawyer will treat them as the last chance to fix the record before the decision. The firm's guides on section 56 requests and section 57 natural justice letters explain how to respond.

What a lawful refusal must address

Department policy says that if a partner visa is refused on the basis that there is no de facto relationship under section 5CB, the refusal must, as a minimum, address all four matters in regulation 1.09A(3). The exceptions are refusals based on the age requirement, the 12-month requirement, or the couple being related by family. A de facto visa lawyer reviewing a refusal will check whether the delegate did that, and whether the delegate confused the 12-month rule with the definition of a de facto relationship, which policy describes as an error of law.

Applying for ART review: who applies, the deadline and the fee

For a Subclass 820 refusal, the visa applicant applies for review. For a Subclass 309 refusal, the visa applicant also applies for review in their own name, under section 338(9) of the Migration Act and regulations 4.02(4)(saa) and 4.02(5)(raa), inserted in 2023. The sponsor does not lodge the review. The firm's guide on who can lodge a partner visa appeal explains the position.

The time limit is strict. Under section 347(3) of the Migration Act, an application for review must be made within 28 days after the day the applicant is notified of the decision, or within 7 days if the applicant is in immigration detention when notified. The Tribunal cannot extend that time. As at October 2026, the ART application fee for review of a migration decision under Part 5 of the Migration Act is $3,580, with a reduced fee of 50 percent available in cases of financial hardship. The firm's guides on the partner visa appeal deadline, partner visa ART fees, preparing for the ART hearing and new evidence at the ART set out the process. If the deadline is close, the firm's urgent ART visa refusal applications page explains how to act quickly.

What the Tribunal has done in de facto cases

The Tribunal reviews the decision on the merits and can consider new evidence. The following decisions, recorded in the firm's database of partner visa matters sent back to the Department, show the kinds of de facto issues the Tribunal deals with. Each was remitted to the Department for reconsideration. They are described only by the issues recorded and are not a prediction of any other case.

  • Decap (Migration) [2020] AATA 1086 (Subclass 820): de facto relationship for at least 12 months; financial, household and social aspects of the relationship; nature of commitment; compelling and compassionate circumstances.
  • He (Migration) [2021] AATA 5325 (Subclass 820): a remittal from the Federal Court where the Tribunal found the applicant had been in the de facto relationship for at least the 12-month period.
  • Perez (Migration) [2021] AATA 2564 (Subclass 820): 12-month requirement met; de facto relationship.
  • Khruapanich (Migration) [2023] AATA 147 (Subclass 820): genuine and continuing relationship; de facto relationship for at least 12 months; pooling of financial resources; shared overseas holidays.
  • PHAM (Migration) [2019] AATA 3680 (Subclass 309): genuine de facto relationship; living in separate countries; previously lived together; relationship history.
  • 2306750 (Migration) [2026] ARTA 1754 (Subclass 820): de facto partner of the sponsor at the time of the visa application; later validly married; resided together; joint bank accounts.

The firm's commercial page on partner visa refusals explains how My Migration Lawyers acts on refused applications, and the guides on non-genuine relationship refusals, refusals for insufficient evidence and the answers on refusals where the relationship was found not genuine and challenging a refusal based on living apart cover the common grounds. The partner visa ART appeal lawyer article explains the review work in more detail.

Choosing a de facto visa lawyer: what to ask before you engage

The right de facto visa lawyer will give you a clear view of your risks, a plan for the evidence, and a written fixed fee before any work starts. Before engaging any adviser, ask direct questions and expect direct answers.

Useful questions include:

  • Does my relationship meet the 12-month rule, and if not, which exception applies? A de facto visa lawyer should be able to answer this at the first consultation once the facts are known.
  • Should we register our relationship? The answer depends on where you live and on your timing.
  • Where are the weak points in our evidence? Every application has some. You should know them before lodgement, not after a section 56 letter.
  • Who will deal with the Department if a request or adverse information letter arrives? The firm's answer should cover responses and deadlines.
  • What happens if the visa is refused? You should understand the review pathway and the time limits before you start.

The firm's guides on questions to ask a partner visa lawyer, what to expect at a partner visa lawyer consultation and fixed fee partner visa lawyers give more detail. Couples comparing advisers can read the factual guide to migration agents and immigration lawyers. The firm also offers a partner visa application review before lodgement for couples who have prepared their own application.

Government charges and timing

As at October 2026, the Department's partner visa application charge starts from AUD 11,710 for most applicants, and the combined Subclass 820 and Subclass 801 application attracts one charge. Charges change, usually on 1 July, so check the Department's website before lodging. The firm's guide to partner visa cost explains the other expenses. For couples facing a deadline, such as an expiring visa, the urgent partner visa lodgement page explains how the firm prepares an application quickly without cutting corners. Applicants who no longer hold a substantive visa should also read about Schedule 3 waivers, and sponsors with previous sponsorships should read about sponsorship limitations.

How My Migration Lawyers acts as your de facto visa lawyer

My Migration Lawyers acts as a de facto visa lawyer for unmarried couples across Australia, by video consultation and from its office at Level 1, 60 Martin Place, Sydney. The firm deals with complex cases, acts in many de facto partner visa matters, and is capable of handling applications that involve short relationships, limited evidence, living apart, previous relationships and refusals.

In a de facto matter, the firm's work is specific to the de facto rules. My Migration Lawyers will test your relationship against every element of section 5CB, identify whether the 12-month rule in regulation 2.03A is met or which exception applies, and advise on whether registering the relationship or arguing compelling and compassionate circumstances is the better course. The firm prepares the application and the sponsorship, helps each partner present their own account in one consistent relationship statement, advises on Form 888 statements, organises the evidence across the four assessed aspects, and deals with the Department until a decision is made. If the Department sends a section 56 request or a section 57 letter, the firm prepares the response. If the visa is refused, the firm advises on ART review within the time limit and can act in the review.

Weiwei Zhang, the firm's principal, oversees the partner visa practice. Every matter is quoted on a fixed fee, agreed in writing before work begins. The firm acts for same-sex and opposite-sex couples, for onshore Subclass 820 applicants and for Australian sponsors of offshore Subclass 309 applicants. Couples elsewhere in Australia can read about the firm's work through its Sydney partner visa lawyers and Melbourne partner visa lawyers pages, and the partner visa questions centre answers many common de facto questions, including the firm's short answer on who can help with a de facto visa.

If you are unmarried and want to know whether your relationship will satisfy the Department, speak to a de facto visa lawyer before you lodge. Book a Consultation with My Migration Lawyers, or call 1300 040 300.

Frequently Asked Questions

What does a de facto visa lawyer do?

A de facto visa lawyer assesses whether an unmarried couple meets the definition of a de facto relationship in section 5CB of the Migration Act and the 12-month rule in regulation 2.03A. The lawyer then advises on strategy, prepares the evidence across the financial, household, social and commitment aspects of the relationship, reviews the relationship statements and Form 888 statements, lodges the application and sponsorship, and responds to Department requests. If the visa is refused, a de facto visa lawyer can advise on and act in an application for review to the Administrative Review Tribunal.

Do we need to have lived together for 12 months to apply for a de facto partner visa?

No, not necessarily. The 12-month rule in regulation 2.03A requires the de facto relationship to have existed for 12 months immediately before the application, not 12 months of living together. The relationship can exist without living together, provided any separation is temporary. The rule also does not apply if the relationship is registered under a prescribed State or Territory law, if compelling and compassionate circumstances exist, or if the sponsor holds or is applying for a permanent humanitarian visa and the relevant conditions are met.

Can we register our relationship after lodging the partner visa application?

Yes. Department policy states that regulation 2.03A(5) does not say when the relationship must be registered, so an applicant who registers after lodging but before the decision is taken to meet the registration exception. A receipt showing that an application for registration has been lodged is not enough. The relationship must actually be registered under one of the prescribed State or Territory laws. Registration removes the 12-month requirement only. It does not prove the relationship is genuine, so the evidence must still satisfy section 5CB.

Which States and Territories have a relationship register that counts for a de facto visa?

The prescribed registers are in New South Wales, Victoria, South Australia and Tasmania, together with civil partnerships in Queensland and civil partnerships and civil unions in the Australian Capital Territory. Department policy lists these laws as meeting regulation 2.03A(5). Not every State and Territory has a prescribed register, and each register has its own eligibility rules, including residence requirements. A de facto visa lawyer will check whether your registration is of the prescribed kind before relying on it.

Is pregnancy a compelling and compassionate circumstance for the 12-month rule?

Not on its own. Department policy states that a pregnancy at the time of application is not considered to meet the compelling and compassionate threshold, although there may be exceptional or unique circumstances surrounding a pregnancy that could qualify. By contrast, policy gives a dependent child of the relationship as an example that may qualify. Couples expecting a child should consider whether registering the relationship is a more reliable way to meet regulation 2.03A, and should get advice before lodging.

Can we get a de facto visa if we have never lived together?

Possibly. Following the Full Federal Court decision in SZOXP, a delegate cannot refuse only because a couple never lived together or was not living together at application or decision. However, the applicant must satisfy the Department that the separation is temporary and that the couple intends to live together. The Department may still refuse on the genuine and continuing test if the overall evidence does not support the relationship. Couples who have never lived together need a strong explanation and evidence of their plans.

Can my partner sponsor me as a de facto partner if they are still married to someone else?

Yes, in some cases. Department policy confirms that section 5CB can be met where one partner is still legally married to another person, as long as the Department is satisfied that the earlier relationship has ended and the current relationship is exclusive. Policy also recognises that a divorce can be difficult or impossible to obtain in some countries. Evidence of the separation, the reasons a divorce has not been finalised, and the exclusivity of the current relationship will be required.

Do same-sex couples apply for a de facto visa under different rules?

No. Section 5CB of the Migration Act provides that a de facto relationship can exist between partners of the same sex or a different sex, and the same tests apply. Same-sex couples who have kept their relationship private for safety can explain that history, and Department policy says delegates should consider how the laws or traditions of the applicant's home country may discourage a couple from openly admitting the relationship. Where de facto relationships are illegal in the home country, that may support a compelling and compassionate circumstances argument.

What evidence does a de facto visa lawyer use to prove a relationship without marriage?

A de facto visa lawyer organises evidence around the four aspects the Department must consider: the financial aspects of the relationship, the nature of the household, the social aspects and the nature of the commitment. That may include shared bills, leases, bank records showing shared spending, correspondence at the same address, travel together, photographs, messages, declarations of the relationship to institutions, wills and superannuation nominations, Form 888 statements from witnesses and one relationship statement from each partner. The Department weighs these together rather than counting them.

Is a Form 888 the same as a statutory declaration?

No. A Form 888 is the Department's form for a supporting witness, usually a friend or family member who knows the couple and can describe the relationship. It is evidence from a witness about the social aspects of the relationship. A statutory declaration is a different document that is required only in specific circumstances. Each partner also prepares one relationship statement in their own words. A de facto visa lawyer checks that every Form 888 is consistent with the relationship statements and the documents.

Can a de facto visa be refused if the relationship is short?

Yes. A short relationship can be refused if the evidence does not satisfy the Department that it is genuine and continuing, or if the 12-month rule is not met and no exception applies. Duration is one factor in assessing commitment, but it is not decisive on its own. A short relationship that is presented clearly, consistently and with good evidence can still be approved. A de facto visa lawyer will advise whether to lodge now, register first or wait.

What happens if my de facto partner visa is refused as not genuine?

The refusal can usually be reviewed by the Administrative Review Tribunal. The application must be lodged within 28 days after the day you are notified of the decision, or within 7 days if you are in immigration detention, and the Tribunal cannot extend that time. As at October 2026, the application fee is $3,580, with a 50 percent reduction available for financial hardship. The Tribunal decides the case afresh and can consider new evidence, so the review is an opportunity to correct gaps in the original application.

Who applies for review if a Subclass 309 de facto partner visa is refused?

The visa applicant applies for review in their own name. Since 2023 amendments to the Migration Regulations, regulations 4.02(4)(saa) and 4.02(5)(raa), read with section 338(9) of the Migration Act, give the Subclass 309 applicant the review right. The sponsor does not lodge the review application. For an onshore Subclass 820 refusal, the visa applicant also applies. In both cases the time limit is strict, so advice should be obtained as soon as the refusal arrives.

Does the 12-month rule apply at the permanent stage of a de facto partner visa?

No. The 12-month rule in regulation 2.03A applies only to the visas listed in regulation 2.03A(3), and it is assessed for the first stage application. Department policy states that the 12-month requirement does not apply to visas not listed. At the permanent stage, the Department assesses whether the relationship is still genuine and continuing. If the couple has married in the meantime, the Department assesses them as spouses instead, and the de facto requirements no longer apply.

Can a boyfriend or girlfriend be a de facto partner for a visa?

Yes, if the relationship meets section 5CB. The label does not matter. What matters is whether the couple has a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and lives together or does not live separately and apart on a permanent basis. Couples who are dating but do not yet share their lives in that way may not qualify, and may need to consider registration, waiting, or a Subclass 300 visa if they intend to marry.

Why use a de facto visa lawyer instead of applying ourselves?

A de facto application has no marriage certificate to anchor it, so the case depends entirely on proving the relationship through evidence and explanation. A de facto visa lawyer tests the relationship against section 5CB and regulation 2.03A before lodgement, identifies weak points, chooses the right strategy for the 12-month rule, cross-checks every statement for consistency and handles Department requests. Many refusals result from avoidable problems such as inconsistent dates, misunderstood exceptions or unexplained gaps, which careful preparation can prevent.

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Weiwei Zhang, Principal Lawyer at My Migration Lawyers
Weiwei Zhang
Principal Lawyer

Weiwei Zhang is the Principal Lawyer and Managing Director of My Migration Lawyers. My Migration Lawyers is one of Australia's leading immigration law firms, dedicated exclusively to Australian immigration law. The firm represents individuals, families and businesses across all areas of migration law, with particular expertise in complex immigration matters, Partner Visas, Protection Visas, corporate migration, visa refusals, Administrative Review Tribunal reviews, judicial reviews and visa cancellations.

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