The 12-month de facto rule, and the three exceptions

The requirement

Regulation 1.09A of the Migration Regulations 1994 defines de facto relationships for partner visa purposes, and its first note points elsewhere for eligibility: “See regulation 2.03A for the prescribed criteria applicable to de facto partners.” Regulation 2.03A is where the 12-month requirement lives.

This applies to de facto applicants. Married applicants are assessed under the spouse definition in section 5F of the Migration Act and regulation 1.15A, where no equivalent 12-month period appears.

The three exceptions

Regulation 2.03A names three circumstances in which the 12-month requirement does not apply:

• Compelling and compassionate circumstances — reg 2.03A(3)(b), where the applicant establishes them.
• Where the relationship involves the holder of a permanent humanitarian visa — reg 2.03A(4).
• Where the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901 — reg 2.03A(5).

Registration schemes are run by states and territories, not the Commonwealth, and their own eligibility rules — residency, minimum age, whether both people must attend — vary by jurisdiction and are set by that jurisdiction, not by migration law. Not every state and territory operates a scheme. The registering authority for the relevant jurisdiction is the source for how its scheme works.

What the exception does and does not change

Regulation 2.03A governs one thing: whether the 12-month period must be established. It does not touch the four-aspects assessment in regulation 1.09A(3), which applies regardless. A relationship shorter than 12 months that falls within an exception is still assessed on its financial aspects, the nature of the household, its social aspects and the nature of the couple's commitment, in exactly the same way as any other.

The two provisions also measure different things. Regulation 2.03A asks how long the relationship has run; regulation 1.09A(3)(d)(i) and (ii) list the duration of the relationship and the length of time the couple have lived together among the matters considered under the commitment aspect. A relationship can satisfy the first and still have little documented under the second.