Do You Really Need 12 Months of De Facto Relationship to Apply for a Subclass 820 Visa?

Do you need 12 months of de facto relationship for a subclass 820 visa?

Usually yes, but not always. The general rule is that a de facto relationship must have existed for at least 12 months immediately before you lodge the application. That is the default, and most de facto applicants have to meet it.

There are real exceptions. The 12 month requirement does not apply where your relationship is registered under a state or territory relationship register, where there are compelling and compassionate circumstances, and in certain cases involving a dependent child. If one of those applies to you, you can lodge without having been together for a year.

Two clarifications before anything else, because both come up constantly.

First, this requirement applies to de facto couples only. If you are married under a marriage recognised in Australian law, there is no 12 month period at all. Married applicants can lodge immediately. They still have to show a genuine and continuing relationship, but the 12 month rule is not part of that.

Second, the 12 months is counted to the date you lodge, not the date of decision. Waiting for the Department to reach your file does not help you accrue the period. If you are three months short today, you are three months short at lodgement, and the application will be assessed on that basis.

What counts towards the 12 months

This is where applicants most often get the answer wrong, in both directions.

The period runs from when the de facto relationship began, not from when you first met and not from when you moved in together. A de facto relationship, in the Migration Act sense, means two people in a mutually committed and exclusive relationship, living together or not living apart on a permanent basis, who are not related by family.

That means living together is evidence of the relationship rather than the start date of it. Couples who were committed and exclusive for eight months before they shared an address can often count from the earlier point, provided they can show it. Conversely, couples who shared a house as flatmates for a year before the relationship became a relationship cannot count that time.

Periods apart do not automatically break the 12 months. Work, study, visa constraints, family obligations and travel all separate genuine couples, and what matters is whether you were living apart on a permanent basis. A three month separation with continued contact and a plan to reunite generally does not reset the clock. Moving out and ending the relationship does.

The practical consequence is that your relationship history needs a defensible start date, stated clearly, with evidence that supports it. Vagueness here is expensive, because if the Department places the start date later than you do, the application may fail on the 12 month requirement alone.

The registered relationship exception

The cleanest way around the 12 month requirement is to register the relationship.

Where a de facto relationship is registered under a prescribed state or territory relationship register, the 12 month requirement does not apply. Registration is available in several Australian states and territories, each with its own process, eligibility rules and waiting period.

This is worth understanding properly because it changes the timing of a whole application. A couple who have been together six months and who register their relationship may be able to lodge immediately rather than waiting another six months. Where the applicant's current visa is expiring, that difference decides whether they can lodge onshore at all.

Registration is not automatic and it is not instant. Each register has its own requirements, which typically include both parties being adults, neither being married or in another registered relationship, and at least one party living in that state or territory. Some registers impose a cooling off period between application and registration.

Registering also does not remove the need to prove the relationship. You still have to satisfy the four criteria in Migration Regulation 1.15A. What registration removes is the minimum duration, not the evidence burden.

One practical warning. Registration is a legal status with consequences beyond the visa, including in property and family law, and it is recognised outside the migration system. It is not a paperwork step to be taken lightly because a visa deadline is approaching. Understand what you are entering into before you register, and check the rules for your own state or territory rather than assuming they are uniform.

Compelling and compassionate circumstances

The second exception is narrower and much harder to rely on.

Where there are compelling and compassionate circumstances, the 12 month requirement may not apply. In practice this most often involves a dependent child of the relationship, but it can extend to other circumstances where insisting on the 12 month period would produce a plainly unreasonable result.

This is a discretionary assessment on your specific facts, not a checklist. A short relationship on its own is not a compelling circumstance, and neither is a visa expiring. What matters is whether there is something about your situation that makes the ordinary requirement inappropriate.

Because it is discretionary and evidence dependent, this is the exception most likely to be argued unsuccessfully by applicants who apply without advice. If you think it applies to you, it is worth having someone assess it before the charge is paid, because the charge is not refunded.

What happens if you are short of 12 months

There are four realistic options, and the right one depends on your current visa.

Register the relationship, if you are eligible and registration is available where you live, and lodge the subclass 820 immediately.

Wait until you reach 12 months and then lodge. This is straightforward if your current visa runs long enough. If it does not, waiting can push you out of the onshore pathway entirely.

Consider the prospective marriage visa. If you are engaged and outside Australia, the subclass 300 exists precisely for couples who cannot yet meet the de facto or married requirements.

Marry. This removes the 12 month requirement immediately. It is a significant decision and should not be driven by a visa timeline, but it is the position in law.

What does not work is lodging short of 12 months and hoping. If no exception applies, the application does not meet a threshold requirement, the charge is spent, and you may have compromised your visa status in the process.

There is a fifth option that is sometimes overlooked, which is simply to check whether you are actually short. Applicants routinely date their relationship from the day they moved in together, when the committed and exclusive relationship began months earlier. A careful reconstruction of the start date, supported by evidence from that period, sometimes shows the 12 months was already met.

The evidence that proves your 12 months

Whatever start date you claim, you have to be able to support it.

Start with a written relationship history in date order. When you met, when the relationship became exclusive and committed, when you began living together if you do, and any periods apart with the reason. This is the spine of the application, and everything else corroborates it.

Then find third party documents that bracket the start date. Messages are weak evidence; a lease, a joint booking, a shared bill, a bank transfer, a change of address notification or a photograph with a verifiable date are much stronger. Two documents from either side of your claimed start date do more than a hundred from the middle of the relationship.

Where you rely on registration, provide the registration certificate and the date of registration. Note that the relevant date is the registration date, not the date you applied to register.

Where you rely on a dependent child, provide the birth certificate showing both parties, along with the ordinary evidence of the relationship.

Where you claim a period apart did not break the relationship, evidence that period specifically: contact during it, travel to see each other, continued financial support, and evidence of the plan to reunite. Do not leave it to be inferred.

The subclass 820 evidence requirements apply in full on top of all of this. Meeting the 12 month requirement gets you past a threshold. It does not prove the relationship.

One final point on timing. Because the 12 months is counted to the date of lodgement, an application that is a few weeks short is not improved by lodging and explaining. It is improved by waiting those few weeks, provided your current visa allows it. Where it does not, registration or another visa option is the answer, not lodging early.

If you are close to the 12 month mark, or unsure when your relationship legally began, our partner visa lawyers can assess the start date and the options before you lodge. You can book a consultation online.