What Is the Difference Between a Spouse Visa and a De Facto Visa?

Are spouse visas and de facto visas different subclasses?

Spouse visas and de facto visas are not different subclasses. Both married and de facto couples apply for the Subclass 820 and Subclass 801 in Australia, or the Subclass 309 and Subclass 100 outside Australia, and pay the same application charge. The only difference is which relationship definition the applicant relies on. Our article on choosing a partner visa pathway explains how the subclass is chosen.

What does a spouse visa require that a de facto visa does not?

A spouse visa requires a marriage that is valid under Australian law, including recognition of an overseas marriage under Part VA of the Marriage Act 1961. The couple must provide the official marriage certificate, and where either person was married before, proof that the earlier marriage ended by divorce or death. Beyond that, the married relationship under section 5F involves the same genuine and continuing relationship test, the same mutual commitment and the same requirement to live together or not live apart permanently.

What does a de facto visa require that a spouse visa does not?

A de facto visa requires the couple to have been in a de facto relationship for at least 12 months immediately before lodgement, unless the relationship is registered under an Australian state or territory law, compelling and compassionate circumstances exist, or another exception applies. The couple must also not be related by family. Our article on de facto partner visas and our article on the Subclass 820 de facto 12-month rule explain these requirements.

Is a spouse visa easier to get than a de facto visa?

A spouse visa is not automatically easier to get than a de facto visa. Marriage removes the 12-month requirement, but a married couple must still prove a genuine and continuing relationship, and a recent marriage after a short relationship is looked at closely. Both kinds of application succeed or fail mainly on the quality of the relationship evidence. Our article on the partner visa four pillars of evidence explains what the Department assesses.

What if we marry after lodging as de facto partners?

A couple who marries after lodging as de facto partners should tell the Department about the marriage, because it is a change in circumstances, and provide the marriage certificate. The application continues, and the marriage becomes further evidence of commitment. The couple does not need to lodge a new application, and the de facto history before the wedding remains relevant evidence of how long the relationship has lasted. Any change in the household, such as a move, should be notified at the same time. Our article on Form 1022 change of circumstances explains how to notify the Department.

How does My Migration Lawyers decide whether a couple applies as spouses or de facto partners?

My Migration Lawyers decides whether a couple applies as spouses or de facto partners by testing both definitions against the couple's real history, including whether the marriage is legally recognised, when the couple began living together and whether the relationship is registered. Where both are open, the firm advises which basis presents the stronger application and prepares the evidence accordingly. Couples can raise their situation with our partner visa lawyers, or read about our Subclass 820 visa work.