Need to wait 12 months as a de facto couple before you lodge your PR?
This may not necessary if you have signed the relationship registry in NSW or one of the other authorised registries.
It has been over a year since we have raised this topic back in Volume 297 but judging by the number of people we have spoken to who are still unaware of this valuable tool, we thought it best to send out the word again.
Essentially if you register your relationship with the Birth Deaths and Marriage (BDM) office in NSW then the usual 12-month requirement for being in a de facto relationship is waived.
We find many couples are waiting patiently until the gather their 12 months of evidence of their relationship before they lodge their sponsorship and residency applications. This waiver provision however makes that unnecessary if the applicant can demonstrate compelling or compassionate circumstances or if the relationship is registered in certain states/territories.
It would be preferable is the relationship is registered before the application is lodged but legally this is not currently necessary. As long as the registry is signed before a case officer is allocated then the waiver provision still must granted.
However it is still vital that you were in a de facto relationship when the application was lodged.
If no compassionate or compelling circumstances exist, as long as the relationship is registered before a decision is made on your application, then there is no requirement to meet the standard 12 months relationship requirement before lodgement.
Here is a practical example;
Bill and Jane, who are not married, have been living together for just two months when Jane lodged her Partner 820/801 visa application, sponsored by Bill.
They lodged the application as a de facto couple for they don't feel the need to get legally married. However when they applied they did not realize that when applying as de facto couple there is a standard requirement that they have lived together in this relationship for at least 12 months before the application is lodged.
When Jane gets a case officer they are informed that they have to be in relationship for 12 months before lodging the application or that there must be compelling or compassionate circumstances why that 12 month period if waived.
Jane sees a migration agent who tells her to rush down to the BDM office in Sydney and sign the registry with her partner. The case officer is then informed the registry has been signed and Jane requests the waiver of the usual 12 months. The visa is then granted on an assessment that they are in a genuine spouse relationship.
This scenario demonstrates that as long as the relationship is registered before an assessment is made of the application, a waiver of the usual 12-month requirement is granted.
You must carefully check the registration requirements for the state/territory where you live but in general you cannot sign the register if you are still legally married to another person. Shame.
What does de facto mean?
De facto is a term where in many overseas cultures it is not commonly used let alone be accepted in the law. It is not unusual then to come across prospective applicants for partner applications who have no idea of what de facto means.
It is always important to remember that a de facto partner does not mean just being a couple. Being a de facto partner is living together as if you were married, committed to your partner for the long-term to the mutual exclusion of all others. Those couples, which may tell the DIBP that you are living together for a couple years to see how their relationship works out, will most likely fail in the application. There must be a long-term commitment.
It may surprise some that you can also be considered being in a de facto relationship with someone who is still married to their ex partner.
However when I mean ex partner, it means exactly as it sounds. That relationship must be dead and buried before you have moved onto to your new long-term relationship. It is not uncommon that a married couple may have separated and ceased their relationship but for issues regarding property settlement or children (etc) they may still be living under the same roof. Either partner is still free to enter into a de facto relationship and perhaps even live half the time in the old family home and the other half with their new partner.
These days the issue of having to live together is fairly flexible. There may be significant reasons why couples are living apart and these can be considered favourably in an assessment of the relationship.
