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Migration to Australia as de-facto spouse: requirements

Introduction

Certain people wishing to settle in Australia permanently are required to be in a relationship for at least one year before they can apply.

The one-year relationship requirement applies to people who are applying to settle in Australia as the de facto partner of an Australian sponsor. It also applies to the de facto partner of permanent or Student visa applicants.

The requirement applies to all such applications made overseas and in Australia. De facto partners of refugee and humanitarian entrants are exempt from the requirement if their sponsor declared the relationship at the time of their application for a refugee or humanitarian visa. If the relationship was not declared at the time of the sponsor's application, the one-year requirement applies.

There are many ways to migrate to Australia. They include, but are not limited to:

  • Sponsorship by an Australian company. The company sponsors you for two years. During this period you have the status of ‘temporary resident’. After the two year sponsorship has ended (longer if the agreement between you and your employer states so), you will be assessed for a second time and usually be granted permanent residency;
  • Immigration through family – if you have a family member in the direct line of ascent, such as a child, or parent, you might be able to apply for residency. (This is one of the most expensive ways);
  • Immigration as a skilled person. This is most common now for those working in the health industry such as nurses and doctors. This is simply a case of supply and demand. If your skill or occupation is in short supply, you are more likely to be accepted into the country. For example, in the past, Australia has recruited those who work in the mining industry.
  • Iimmigration as a defacto spouse.

This article covers immigration as a defacto spouse.

Of curse you must already be in a continuing relationship with an eligible Australian citizen, or permanent resident.

Consider which relationship out of the following, you are in:

  • Married / Defacto relationship? You need a spouse visa
  • Intended marriage? You need a prospective marriage visa
  • Fiancé? Interdependent relationship, You need an interdependency visa
  • Same-sex relationships? You need an interdependency visa

So, you’ve chosen a spouse visa? Consider the following questions:

Am I eligible for this visa?

You must have been married to, or in a defacto relationship with your partner for at least 365 days prior to application. You must be able to provide ‘concrete’ evidence of your relationship for the last 365 days. The immigration department will not consider anything less.

If you are married, the same applies. If you are newlyweds, the relationship as defacto partners must still be a year or more. Most marriages are recognised under Australian law as long as you have a marriage certificate. However, same-sex marriages, under-age, or polygamous marriages are not recognised.

Application

The process is in two stages. You can apply from within Australia, or outside Australia.

Stage one – You must submit an application. This compromises statutory declarations by both people, as well as by friends and family, dated photographs, telephone bills, electricity bills, other household bills, evidence f joint finances, assets and liabilities. Your application will be assessed and if you are successful, you will be granted temporary residency.

Stage two - Your relationship is then assessed over a two-year period and after the two years; permanent residency will be granted as long as you meet all the requirements. This often means that as long as you are still with the same partner, you haven’t been convicted of a criminal offence and you have been contributing to the economy, they will grant you permanent residency.

If you apply from inside Australia, the first stage is a subclass 820, temporary spouse visa. The second stage to this would be subclass 801 for permanent residency. If you are applying from outside Australia, the visa will be a provisional 309 and the second stage, more likely from inside also, but can be from outside, will be a subclass 100.

Eligibility

If you are married, you must fulfil the following:

  • Be legally married to your spouse;
  • Show that you have a mutual commitment to each other, excluding all others;
  • Show that your relationship is genuine and continuing;
  • Show that you are living together, and if not, that the separation is only;
  • temporary;
  • Meet health and character requirements.

If you are in a de-facto spouse relationship, show that:

  • You are of the opposite sex and over 18 years of age;
  • You have a mutual commitment to a shared life, excluding all;
  • Others;
  • Your relationship is genuine and continuing;
  • Prove the relationship for the 12 months prior to application;
  • Meet health and character requirements.

For the temporary visa (stage one), if you lodge the application in the Australia you must be in the applicable country when the visa is granted. If you lodge it outside of Australia, you must be outside when it is granted.

After two years, your situation will be considered again. For the permanent visa, if you lodged the initial application outside Australia, you may be in or out when the permanent visa is granted. If you lodged the original application in Australia, you must be in Australia when the permanent visa is granted.

If your relationship ends

You must inform the department immediately. You may still be eligible for the permanent visa, without having to wait the two years.

Children

If you have children migrating with you, you must register them on the application. Your children must be under 18 for migration to Australia. If over this age, they have the right to apply under their own name. It will cost extra for them to enter Australia with you and they also, will have to meet health and character requirements.

Sponsor

You must have a willing sponsor for your application. This will usually be your partner, however if he/she are not financially capable of doing this, you may choose a different sponsor who is able to support you financially.

Evidence of your relationship

This is the most difficult part to prove. The Immigration department asks that you provide an extensive collection of:

  • Joint bank account statements;
  • Joint utility bills;
  • Proof of a joint mortgage;
  • Joint ownership of a car / share / investments;
  • Social invitations e.g. to a wedding;
  • Birthday and Christmas cards;
  • Photos, with a date and description;
  • A Will in which the partner is identified as a benefactor;
  • Joint membership of social activities / gyms / clubs etc;
  • It is always safer to have more rather than less, so file everything away. Any documents they don’t require will be returned to you. Immigration will keep anything they need, such as copies of birth certificates etc until the final decision is made after stage two.

Health and Character Checks

You must healthy and that complete the recognised tests. This includes a chest X-ray, blood test, and general medical. You must pay for this yourself. They will expire after one year, so make sure you complete them a month or two prior to your application and not 11 months before! For the character checks, you must send details to the police stations of places you have been residing for over a year, in the last ten years.

Assistance

It is difficult to get advice while gathering your evidence. Nobody is qualified to tell you whether your application will be successful. Even a migration agent, which is a useful tool for a non-English speaker, can only give advice.

Migration Agents

Migration agents are lawyers, specialising in migration issues. They cannot decide your case for you and will only offer advice. If your first language is not English, they are useful. They can help you to fill out forms and aid with the presentation of your case. However, if you speak English proficiently and are reasonably confident, you could save money by not registering with an agent. If you have doubts about your case, agents can reassure you.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.

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