Can I Get a De Facto Visa If We Are Related?

Who counts as related by family for a de facto visa?

People count as related by family for a de facto visa if one is the child or other descendant of the other, or if they have a parent in common, as set out in section 5CB(4) of the Migration Act. This covers parents and children, grandparents and grandchildren, and brothers and sisters, including half-siblings and siblings through adoption. Two people in any of these relationships cannot be in a de facto relationship for migration purposes, however long they have lived together. Our article on the de facto partner visa sets out the full de facto test.

Can cousins have a de facto partner visa?

Cousins can have a de facto partner visa because cousins do not share a parent and neither is the descendant of the other, so they are not related by family under section 5CB. The relationship is then assessed like any other de facto relationship, on whether it is genuine and continuing and on the four aspects the Department examines. Our article on the partner visa four pillars of evidence explains those aspects, and cultural context about how the relationship formed is covered in our article on partner visa cultural differences.

What about step-siblings or relatives by marriage?

Step-siblings and relatives by marriage are not related by family under section 5CB unless they also share a parent or one descends from the other. A stepbrother and stepsister with no common parent, for example, are not excluded by the definition. The relationship is assessed on the evidence, and the family connection should be explained openly rather than left for the Department to find. Our article on partner visa previous relationships explains how earlier family links and marriages are disclosed.

Does the same rule apply to married couples?

Married couples are assessed under a different rule, because a spouse visa depends on a marriage that is valid for the purposes of Australian law under section 5F of the Migration Act. The Marriage Act 1961 prohibits marriage between an ancestor and a descendant, and between siblings, including half-siblings, so such a marriage cannot support a spouse visa even if it was lawful where it took place. A marriage between first cousins is not prohibited in Australia. Our article on an overseas marriage that is not recognised explains how recognition is assessed.

How should related couples present their evidence?

Related couples should present their evidence by explaining the family connection clearly at the start and then providing the same relationship evidence any couple would give. A simple family tree naming the shared relatives, supported by birth certificates where useful, lets the Department see quickly that the couple is not related by family as the law defines it. The relationship statement should describe how the relationship developed from a family connection into a committed partnership.

How does My Migration Lawyers advise couples who are related?

My Migration Lawyers maps the family connection against section 5CB and the Marriage Act before advising whether a de facto or spouse application is possible. Where the connection is lawful, the firm prepares the application so that the family history is explained once, accurately and with documents, and the relationship evidence then carries the case. Couples with a family connection can speak with our partner visa lawyers in confidence.