Can Same-Sex Couples Get a De Facto Visa?

What are the requirements for a same-sex de facto visa?

The requirements for a same-sex de facto visa are the same as for any de facto partner visa: a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, living together or not living apart on a permanent basis, and generally 12 months as a couple before lodgement. The sponsor must be an eligible Australian citizen, permanent resident or eligible New Zealand citizen. Our article on partner visa requirements sets out every criterion.

Can a same-sex couple use relationship registration instead of the 12 months?

A same-sex couple can use relationship registration instead of the 12 months if the relationship is registered under an Australian state or territory register before the application is lodged. Registers are available in New South Wales, Victoria, Queensland, South Australia, Tasmania and the ACT, each with its own eligibility rules. Our article on whether you really need 12 months of de facto relationship explains how registration interacts with the rule.

Should a same-sex couple marry or apply as de facto partners?

A same-sex couple can choose to marry or apply as de facto partners, because same-sex de facto partners were recognised in migration law before marriage equality took effect in Australia on 9 December 2017, and both bases are now available. Marriage removes the 12-month de facto requirement, but it is never a substitute for a genuine relationship. The better basis depends on the couple's timeline and circumstances, and the choice should be made before lodgement rather than changed during processing. A couple who marry after lodging as de facto partners should tell the Department about the marriage, and our article on partner visa change of circumstances explains how.

Does the Department assess same-sex relationships differently?

The Department does not apply different legal tests to same-sex relationships, and it assesses the same four aspects: financial aspects, the nature of the household, social aspects and the nature of the commitment. In practice, the evidence may look different where a partner comes from a country where same-sex relationships are hidden, and the application should explain that context. Our article on the partner visa four pillars of evidence explains each aspect.

Can a same-sex de facto partner apply from inside Australia?

A same-sex de facto partner can apply from inside Australia for the Subclass 820 visa if they meet the onshore requirements, including being in Australia at lodgement and grant. An applicant without a substantive visa may need to meet Schedule 3 criteria, and an applicant whose visa carries condition 8503 needs a waiver before applying. Our guide to the onshore partner visa explains these rules.

How does My Migration Lawyers support same-sex couples applying as de facto partners?

My Migration Lawyers supports same-sex couples by confirming whether the de facto definition and the 12-month requirement are met, advising whether registration or marriage is the stronger basis, and preparing evidence that reflects how the couple actually live. Where one partner's history includes concealment for safety, the firm addresses it honestly and consistently. Couples can read more about the firm's LGBTI partner visa work before requesting a consultation.