Partner Visa Evidence: How to Prove Your Relationship Is Genuine

What do you actually have to prove for a partner visa?

You have to prove that your relationship meets a definition in the Migration Act 1958, not that you have collected a set number of documents. For a married couple the definition is in section 5F of the Act. For an unmarried couple it is in section 5CB. Every photograph, bank statement and lease exists for one purpose only, which is to satisfy a delegate of the Department of Home Affairs that the statutory definition is met on the day the decision is made.

Section 5F provides that two people are in a married relationship if they are married to each other under a marriage that is valid for the purposes of the Act, they have a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship between them is genuine and continuing, and they live together or do not live separately and apart on a permanent basis. Each of those four elements must exist. A delegate is required to assess each one separately.

Section 5CB applies the same structure to de facto partners. The couple must not be married to each other, they must have a mutual commitment to a shared life to the exclusion of all others, the relationship must be genuine and continuing, they must live together or not live separately and apart on a permanent basis, and they must not be related by family within the meaning of subsection 5CB(4).

This is the test for every stage of the partner program. It applies to the Subclass 820 onshore partner visa and the permanent Subclass 801 that follows it, and to the Subclass 309 offshore partner visa and the permanent Subclass 100 that follows that. The wording of the definition does not change because the applicant is offshore, because the couple are same sex, or because the relationship began online.

The practical consequence matters more than it looks. Applicants routinely assemble evidence by theme, then discover at decision stage that nothing in the file speaks to one of the statutory elements. A file can be thick with photographs and still say almost nothing about whether the couple have a mutual commitment to the exclusion of all others. The correct way to build a partner visa application is to work backwards from the words of section 5F or section 5CB, and to ask of each document what element it proves.

The four matters in regulation 1.15A and regulation 1.09A

Regulation 1.15A of the Migration Regulations 1994 sets out four matters that the Minister must consider in a married relationship case, and regulation 1.09A sets out the same four matters for a de facto relationship. For an application for a Subclass 309 visa, a Subclass 100 visa, a Subclass 820 visa or a Subclass 801 visa, the decision maker must consider all of the circumstances of the relationship, including those four matters. The four matters are 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.

Each of the four matters has its own list of subparagraphs, and those lists are where the real content of a partner visa application sits.

The financial aspects of the relationship include any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of day to day household expenses.

The nature of the household includes any joint responsibility for the care and support of children, the living arrangements of the persons, and any sharing of the responsibility for housework.

The social aspects of the relationship include whether the persons represent themselves to other people as being married to each other or as being in a de facto relationship, the opinion of the persons' friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

The nature of the persons' commitment to each other includes the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see the relationship as a long term one.

Those subparagraphs are not a closed list. The Department's own procedural instruction describes them as non-exhaustive, and records that a relationship may show characteristics the regulation does not mention at all. Anything genuinely probative of the relationship can be put before the delegate, and a delegate is required to take into account any other relevant information available to them, not only the material that fits neatly under one of the four headings.

Two points follow, and they are the two that decide most applications. The first is that the four matters are matters to be considered, not criteria to be passed. The second is that the delegate decides how much weight each matter and each document carries. Understanding both is worth more than any list of documents, and it is why the general partner visa evidence guidance should be read alongside the statutory test rather than instead of it.

Can a partner visa be refused because one of the four matters is weak?

No. The four matters in regulation 1.15A and regulation 1.09A are circumstances that must be considered, not criteria that must be satisfied, and the Department's procedural instruction states that it would be an error of law to refuse a partner visa on the basis that one or more of the four prescribed matters is not met. The regulation requires only that all four be considered. It does not require any of them to be made out.

This is the single most misunderstood point in the whole area, and it is repeated incorrectly across a great deal of published material about partner visas. Couples are told that they must produce joint finances, or a joint lease, or a certain number of supporting statements, as though each were a gate. They are not gates. A couple who cannot open a joint account because one of them has no Australian identity documents yet, or who live with a parent and hold no lease in their own names, have not failed anything. They have a circumstance that has to be explained and evidenced in another way.

The assessment is also not a tally. The Department's instruction is explicit that the delegate's assessment must not be made by comparing how many of the listed matters are satisfied against how many are not. The delegate considers the individual relationship against all of the listed factors, takes into account any other relevant information, and decides whether, on balance, the requirements of section 5F or section 5CB are met.

There is a real protection built into this for applicants. Where a partner visa is to be refused on the basis that there is no married relationship or no de facto relationship, the refusal decision must address all four matters. A refusal that seizes on the absence of joint finances and says nothing about household, social aspects or commitment is a refusal with a defect on its face, and that matters if the decision goes to the Administrative Review Tribunal. Understanding how a decision must be written is part of understanding what to do if a partner visa is refused.

How much weight does each kind of evidence carry?

Weight is a matter for the delegate, and the Department's guidance gives clear signals about what tends to carry more of it. Those signals are far more useful than a document list, because they explain why two applications containing the same categories of evidence are not equally strong.

On finances, a joint bank account that has been operated with reasonable frequency and over a reasonable period is given more weight than an account opened recently or one with few transactions. An account opened a fortnight before lodgement, with one deposit in it, is close to worthless and can look worse than no account at all. Separate accounts are not a problem in themselves, because the guidance accepts that many couples keep their finances separate. What the guidance expects, in joint accounts and personal accounts alike, is evidence of income or spending on shared costs such as rent, a mortgage and utilities. Evidence that one partner pays the rent and the other pays the electricity and the groceries is evidence of the basis on which day to day expenses are shared, which is exactly what subparagraph (a) asks about.

On the household, the strongest material is ordinary and boring. Joint ownership of residential property, a joint residential lease, joint rental receipts, joint utility accounts, and correspondence addressed to either or both parties at the same address all go directly to the living arrangements of the persons. Where the couple live in a family home and hold nothing in their own names, the gap can be filled with material addressed to each of them at that address over time, and with evidence of who does what in the household.

On social aspects, declarations made to other government bodies and to commercial institutions carry weight, particularly where the body has accepted the declaration. Naming a partner on a superannuation fund, on private health cover, on a lease, on an employer's records or on an electoral enrolment is a representation made to a third party, at a time when nothing about a visa turned on it. Statements by parents, family members, relatives and friends about the nature of the relationship are expressly contemplated, and the Department provides Form 888 for supporting witnesses to use. A Form 888 statement that describes specific occasions, in the witness's own words, is worth several that repeat the same template sentences.

On commitment, the guidance points to the extent to which the partners have combined their affairs and provided for each other, including whether each is a beneficiary of the other's will or superannuation, and to the partners' knowledge of each other's personal circumstances, which can be tested at interview. It also points to evidence of intention for the long term, such as joint travel and concrete plans for the future.

Quantity is not the measure. A small, well organised file that speaks to each of the four matters and to each element of the statutory definition is stronger than a large one that repeats the same proof of the same fact. For a category by category working list, the Subclass 820 evidence checklist sets the material out in the order the Department reads it.

Can a partner visa be granted if the couple have never lived together?

Yes. 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 an applicant fails the living together requirement in paragraph 5CB(2)(c) 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. That judgment binds delegates, and the Department's own instruction records it.

The requirement is not that the couple have lived together. The requirement is that they live together or do not live separately and apart on a permanent basis. Any separation must be temporary. The onus sits on the applicant to satisfy the delegate that the separation is temporary and that the couple intend to live together at some point in the future. There is no prescribed timeframe within which that must happen, and each case is decided on its own facts.

The distinction is practical rather than technical. An application by a couple who have never lived together cannot be refused for failing paragraph 5CB(2)(c) alone, but it can still be refused on the separate ground that the relationship is not genuine and continuing under paragraph 5CB(2)(b), because the periods of living together, and the reasons the couple are apart, are relevant to that question. A couple separated by work, by study, by immigration status or by the cost of moving should say so plainly, give the reason, and evidence the intention to live together, rather than leaving the delegate to infer it.

What if it is not safe to be open about the relationship?

Departmental policy requires a delegate to take into account the extent to which the laws or traditions of an applicant's home country may discourage the parties from openly admitting that the relationship exists. The social aspects of a relationship are assessed against what the couple can safely do, not against an Australian default.

This matters for couples whose families have not been told, for couples from communities where an unmarried relationship carries consequences, and for same sex and LGBTIQ+ couples whose relationship may be criminalised or socially dangerous in one partner's country of origin. Where public representation as a couple is limited for those reasons, the reason belongs in the application, in the applicant's own words, supported by whatever private evidence exists. The circumstance is one the decision maker is required to weigh, and it is not weighed at all if it is never raised.

The twelve month de facto period is a separate requirement, not an evidence question

The twelve month de facto requirement sits in regulation 2.03A of the Migration Regulations 1994 and is not part of the definition of a de facto relationship at all. Confusing the two is a common and expensive mistake. Regulation 2.03A applies only once the applicant has already been found to meet section 5CB, and it imposes two additional criteria: both parties must have been at least 18 years old when the application was made, and for the visas listed in the regulation the de facto relationship must have existed for at least twelve months immediately before the application was made.

Because the two are separate, a couple can be in a genuine de facto relationship within the meaning of section 5CB and still fail regulation 2.03A, and it would be an error of law for a delegate to reason that a relationship of less than twelve months is therefore not a de facto relationship.

The twelve month period does not apply where the de facto relationship is registered under a prescribed State or Territory law. Registration is the cleanest answer to the problem, and the Department accepts registration that occurs after the application is lodged but before it is decided, because the regulation does not say when the relationship must be registered. Evidence of the registration itself is required, and a receipt showing that an application for registration has been lodged is not enough.

The other exception is compelling and compassionate circumstances, and the threshold is high, because the circumstances must be both compelling and compassionate. A dependent child of the relationship is the clearest example given in policy. The fact that de facto relationships are unlawful in the country where one or both of the couple live is another. Two things do not meet the threshold on their own. The genuineness of the relationship does not, because every applicant assessed under regulation 2.03A has already been accepted as being in a genuine de facto relationship. Pregnancy at the time of application does not, although unique circumstances relating to a pregnancy may. The exceptions are set out in more detail in the article on the twelve month de facto rule.

Evidence does not stop at lodgement

The relationship has to satisfy the definition at the time the decision is made, not only at the time of lodgement, so evidence covering the period after lodgement is part of the application. Partner visa applications are decided months after they are filed. A file that stops the day it was lodged invites the delegate to ask what has happened since.

A delegate may invite an applicant to give additional information under section 56 of the Migration Act 1958, and an invitation of that kind is a defined opportunity with a deadline attached rather than an open conversation. Applicants are also required to notify a change of circumstances that makes information in their application incorrect. Nothing prevents an applicant from providing further material before a decision is made, and a short, dated update that adds new joint documents is usually better received than a second bundle of the same material.

The second stage matters for the same reason. The permanent Subclass 801 and Subclass 100 visas are decided on whether the relationship continues to meet the definition at that later point, so the evidence gathered during the temporary stage is not spare paper. Couples who stop keeping records after the Subclass 820 visa is granted often find the permanent stage harder than the temporary one.

How My Migration Lawyers prepares partner visa evidence

My Migration Lawyers prepares partner visa applications by starting from the statutory test and working outwards to the evidence, rather than sending a client away with a list. On a partner visa matter the firm identifies which definition applies, section 5F or section 5CB, maps the material the couple already hold against the four matters in regulation 1.15A or regulation 1.09A, and identifies the elements of the definition that the existing material does not reach.

Where a category is thin, the firm addresses it directly in the written submission rather than leaving the gap for the delegate to interpret. A couple with no joint account, no lease in joint names, or a relationship that has been kept private from family, is not a weak application. It is an application that needs the reason on the record and the alternative evidence organised around it.

The written statements are the client's own account. The firm reviews and corrects them with the client, the client confirms them before anything is lodged, and the client decides which claims are advanced. The same approach applies to Form 888 statements from supporting witnesses, which are the witness's own evidence and are prepared to describe what that witness has actually seen.

Partner visa matters at the firm are conducted by Weiwei Zhang, Principal Lawyer, and consultations are held by video anywhere in Australia. If a partner visa application is being prepared, has been delayed, or has attracted a request for further information, you can request a consultation with a migration lawyer or read more about how the firm acts in partner visa matters.