What Is the Legal Definition of a De Facto Relationship for a Visa?

What are the elements of a de facto relationship under the Migration Act?

The elements of a de facto relationship under section 5CB of the Migration Act are that the couple is not married to each other, has a mutual commitment to a shared life to the exclusion of all others, has a relationship that is genuine and continuing, lives together or does not live separately and apart on a permanent basis, and is not related by family. Every element must be met. A couple who meets most of them but not all does not have a de facto relationship for migration purposes. Our guide to the de facto partner visa explains how each element is applied.

What does exclusion of all others mean?

Exclusion of all others means the relationship is exclusive, so neither partner is in another de facto relationship or marriage at the same time in a way that competes with this one. A partner who is still legally married to someone else is not automatically excluded, but must show that the earlier relationship has ended in substance. Our article on partner visas while married to someone else explains how this is assessed.

How does the Department decide whether a de facto relationship is genuine?

The Department decides whether a de facto relationship is genuine by considering all the circumstances, including the four matters in regulation 1.09A: the financial aspects of the relationship, the nature of the household, the social aspects and the nature of the commitment. No single document decides the question. The Department weighs the evidence as a whole and looks for consistency between the couple's accounts. Our article on proving your relationship is genuine explains what case officers look for.

Does the definition differ from family law?

The migration definition of a de facto relationship is separate from the definition used in family law, and the two should not be treated as interchangeable. A couple recognised as de facto partners for a property or parenting matter is not automatically recognised for a visa, and the reverse is also true. For a visa, the test in section 5CB and the evidence considered under regulation 1.09A are what count. The Department also expects the evidence to cover the four pillars of the relationship, whatever another court or agency has decided.

Does the legal definition apply to same-sex couples?

The legal definition of a de facto relationship applies equally to same-sex couples. Section 5CB expressly covers partners of the same sex or a different sex, and the evidence requirements are the same. Some couples face particular evidence issues, for example where the relationship has not been disclosed to family. Our page on the LGBTI partner visa explains how these situations are presented.

How does My Migration Lawyers apply the legal definition to your relationship?

My Migration Lawyers applies the legal definition to a relationship by testing each element of section 5CB against the couple's actual history and documents, and identifying any element that is weak before the Department does. Where an element is in doubt, such as an earlier marriage not yet formally ended or a period living apart, the firm explains it in the application with supporting evidence. Couples can speak with our partner visa lawyers about how the definition applies to them.