Naturally there is a catch to this, firstly one of you must be at least a permanent resident of Australia or an Australian Citizen or an eligible N.Z citizen. The second catch, you must not be attached to anyone else. Legally you can be still married to another but that relationship has ended so therefore you are no longer attached to your former partner. For example, both of you may be still married to someone else but your relationships have ended. Both of you are free to enter into a defacto relationship and there is no actually requirement to prove you are divorced from your former spouse.
So let`s have a look at the definition of what a partner can be;
For the purposes of the Migration Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, the person is in a de facto relationship with the other person.
A person is in a de facto relationship with another person if they are not in a married relationship with each other but:
they have a mutual commitment to a shared life to the exclusion of all others; and
the relationship between them is genuine and continuing; and
they, live together or do not live separately and apart on a permanent basis and they are not related by family.
There is normally a 12 month provision where the relationship has to meet this criteria before an application can be made. This means living together as if you were married, not just being casual partners.
If this 12 month period has not been met, couples can sign the Relationship Registry in NSW and then the twelve month period can be waived once the certificate is issued. It takes 28 days to have the certificate issued after the signing of the registry. If you live in another state then you need to carefully check if it is on DIAC`s list.
To be defined as a spouse for the purposes of the migration regulations you must be married as a husband and wife. Same sex couples cannot be considered as being in a spousal relationship. Married is defined as;
they are married to each other under a marriage that is valid for the purposes of this Act; and
they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
the relationship between them is genuine and continuing; and
they: live together; or do not live separately and apart on a permanent basis.
Having met then one of the definitions above DIAC will assess your relationship to ensure they consider it to be genuine and continuing. Some of the relationship factors they examine are the following;
the financial aspects of the relationship, including:
any joint ownership of real estate or other major assets; and
any joint liabilities; and
the extent of any pooling of financial resources, especially in relation to major financial commitments; and
whether one person in the relationship owes any legal obligation in respect of the other; and
the basis of any sharing of day-to-day household expenses; and
the nature of the household, including:
any joint responsibility for the care and support of children; and
the living arrangements of the persons; and
any sharing of the responsibility for housework; and
the social aspects of the relationship, including:
whether the persons represent themselves to other people as being married to each other; and
the opinion of the persons' friends and acquaintances about the nature of the relationship; and
any basis on which the persons plan and undertake joint social activities; and
the nature of the persons' commitment to each other, including:
the duration of the relationship; and
the length of time during which the persons have lived together; and
the degree of companionship and emotional support that the persons draw from each other; and
whether the persons see the relationship as a long-term one.
It`s not enough just to write a story about how you both may meet the criteria above, there should be some quantifiable evidence to go with it such as joint, banks accounts, lease agreements, travel details together, photographs, etc, etc.
When you can apply within Australia, the most common way for former international students (and current ones), you apply for the Partner 820 visa. This is also a combined application for the Partner 801 visa which means for the one application fee you are actually applying for two visas at once. The 820 visa is the first one DIAC will assess and then in two years from the date of your application, they will assess you again.
Unfortunately this means that you have to demonstrate all the evidence again, but this time show that in the last two years since applying, you have been still living together as dedicated partners. Not too difficult. The hardest part is of course, is just surviving the relationship. You do not need to do the medical again, which is some good news.
Where dependent children are involved in the original application, they do not have to be dependent when the two years comes up for the 801 assessment. For example;
Jane had a daughter who was 17 and was in high school when she was sponsored by her partner for permanent residence. By the time the 801 visa came up for assessment Jane`s daughter had finished high school, left home and working full time, thus was not legally regarded as dependent for the migration regulations. However this did not matter for in the second stage Jane`s daughter will still be granted permanent residence as dependency is not assessed in the final stage.
In offshore applications, a similar arrangement occurs where the main applicant once approved is granted a two year temporary visa to enter Australia and then assessed again at the end of this time. It is possible if you have been in a long term relationship and your partner is sponsoring you come to Australia with them, then permanent residence can be sought instead of the temporary visa arrangement. For example;
Jim has come to study in Australia and has to leave his wife and two daughters at home with his parents. After his course, Jim applied for PR and has it granted. He then sponsors his family for the Partner visa but request for permanent residency for them since he has been married for several years. Jim`s family are then granted PR together and they move to Australia.
This brings me to the difficult part, what happens if the relationship doesn`t survive the first two years and has broken down or ceased?
Generally there are only three provisions in the law where the permanent residency visa can be still be considered to grant by a case officer. The first one is where there are dependent children of the relationship and a joint custody provision in Australia is in place. Secondly, the sponsoring partner has died. Thirdly, the relationship ended due to domestic violence towards either the main applicant or dependent child.
In all of these circumstances a considerable amount of evidence needs to be provided and professional representation is advisable.
When you make you choice, make sure it`s a wise for there are serious limitations on sponsorship permission and even if you have been sponsored. In my next newsletter we will cover this important issue that sadly many people are not aware of until it`s too late.