That rule sits in regulation 2.03A of the Migration Regulations 1994. It applies only to unmarried couples, and it catches people out because the 12 months is measured against a legal definition of the relationship, not against the day you met.
This page explains what a de facto partner is in migration law, how the 12 months is counted, what happens if you have spent part of that time apart, and how the period is usually evidenced. It is one of the 820 visa requirements that applies only to unmarried couples.
What is a de facto partner under Australian migration law?
A de facto partner is defined in section 5CB of the Migration Act 1958. Under section 5CB(1), a person is the de facto partner of another person, "whether of the same sex or a different sex", if they are in a de facto relationship under section 5CB(2).
Section 5CB(2) sets out four conditions. Two people are in a de facto relationship if they are not in a married relationship with each other for the purposes of section 5F, and:
- 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.
"Related by family" is defined in section 5CB(4): one person is the child, including an adopted child, of the other; one is another descendant of the other; or they have a parent in common.
Section 5CB(3) allows the regulations to say how those conditions are worked out, and regulation 1.09A of the Migration Regulations does exactly that. For a Partner (Temporary) (Class UK) application, which is the class the subclass 820 sits in, regulation 1.09A(2) says the Minister must consider all of the circumstances of the relationship, including the matters listed in regulation 1.09A(3): the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons' commitment to each other. Those four headings drive the whole relationship evidence exercise, and they are the same four headings used to assess a genuine and continuing relationship.
The legal definitions of spouse and de facto sit side by side, and the differences matter: married applicants are assessed against section 5F and do not face the 12-month rule, which is why some couples weigh up married or de facto before they lodge.
How long must the de facto relationship have existed?
Regulation 2.03A(3) of the Migration Regulations says that where a person claims to be in a de facto relationship and applies for a Partner (Temporary) (Class UK) visa, and the applicant "cannot establish compelling and compassionate circumstances for the grant of the visa", the Minister must be satisfied that the applicant "has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application".
Two things follow from that wording.
The period must end at lodgement. The 12 months has to be complete immediately before the day the application is made. Time that accrues afterwards, while the application waits in the queue, does not repair a shortfall on the day you lodged.
The period must be 12 months of a relationship that met section 5CB. The clock does not start when you met, when you first went out, or when you moved in together, unless that is also the point at which all four conditions in section 5CB(2) were satisfied. In practice, the date you nominate is the date from which you can show a mutual commitment to a shared life to the exclusion of all others.
Regulation 2.03A(2) adds a separate requirement for de facto applicants: both the applicant and the person they claim to be in a de facto relationship with must be at least 18. That is checked at the time of application, and it sits alongside the general age requirements.
Watch out
the 12-month rule is a criterion at time of application. If the relationship had not met the definition for a full 12 months when you lodged, the application can fail on that point no matter how strong the relationship becomes later. Check the date carefully before lodging, and look at the exemptions from the 12-month rule if you are short.
What counts towards the 12 months, and what does not?
Time counts if, during it, the relationship satisfied section 5CB(2). Nothing in the Act or the Regulations requires the couple to have shared a lease, a mortgage or a bank account for the whole period, and nothing requires a particular living arrangement. What is required is that the four conditions were all met throughout.
Time that generally does not count includes:
- the period before a mutual commitment to a shared life existed — dating, seeing each other, or an exclusive relationship that both people still treated as provisional;
- any period in which you were in a married relationship with each other, because section 5CB(2) applies only where the couple are not in a married relationship for the purposes of section 5F (a marriage takes you onto the married spouse requirements instead);
- any period during which you had separated permanently, even if you later reconciled;
- time after the application was lodged.
There is no rule in the Act or the Regulations that a relationship must be registered, or that you must have lived at the same address, for the 12 months to count.
Does time living apart break the 12 months?
No — not automatically. Section 5CB(2)(c) is satisfied if the couple live together or do not live separately and apart on a permanent basis. The second limb exists precisely so that couples who are physically apart can still be in a de facto relationship.
That matters for a lot of 820 applicants, because the path to an onshore lodgement often involves visa gaps, work postings, study, or a period when one person could not remain in Australia. A separation of that kind does not end the relationship in law. What the Department looks at is whether the separation was permanent in nature.
The practical burden shifts to evidence. If you were apart for part of the 12 months, be direct about it: give the dates, the reason, what you were doing to maintain the relationship, and the point at which you were together again. The evidence when you live apart page goes through what that looks like in practice.
Do same-sex de facto couples have to meet different rules?
No. Section 5CB(1) states the definition applies to a person and another person "whether of the same sex or a different sex", and the same words appear in section 5F for married couples. There is no separate criterion, no additional evidence category and no different waiting period for same-sex applicants. The four matters in regulation 1.09A(3) are assessed the same way.
Where practical differences arise, they are about evidence rather than law — for example where a couple has not been open with family, or where the applicant's home country criminalises same-sex relationships and there is little documentary history. Those situations are covered on the page for same-sex couples.
How is the 12 months evidenced?
By showing that the four matters in regulation 1.09A(3) were present across the period, with documents that carry dates. A statutory declaration saying the relationship began on a particular date is a claim; the dated material behind it is what the Department weighs.
| Regulation 1.09A(3) heading | Dated material that shows duration |
|---|---|
| Financial aspects | Joint accounts, shared bills, transfers between you, joint liabilities, insurance policies naming the other person |
| Nature of the household | Leases and tenancy ledgers, utility accounts, mail addressed to both of you, shared responsibility for children |
| Social aspects | Photographs with dates, invitations, travel bookings, statements from friends and family about when the relationship began |
| Nature of the commitment | Messages across the period, the length of time you have lived together, wills, superannuation nominations, emergency contact forms |
Two points are worth planning for. A registration is a hard anchor in your favour, but it proves nothing about the months before the registration date — see registering your relationship. And if the strongest evidence of the early months sits in a phone or an old email account, export it before you lose access.
Getting the date right
The 12-month rule turns on a single date, and that date has to be defensible. An application prepared by a migration lawyer is more likely to succeed on this point, because the common failure is a lodgement made a few weeks early, or a start date chosen from memory that the evidence does not actually support — and neither can be fixed after lodgement.
What to do next
If your relationship has run for 12 months or more, the next question is whether it is genuine and continuing on the four regulation 1.09A(3) headings, which is set out on the genuine and continuing relationship page. If you are short of 12 months, read the exemptions from the 12-month rule before you do anything else, because one of them may apply to you and another depends on a step you have to take before lodging.
Common questions
Do we have to have lived together for 12 months to apply for the 820 as de facto partners?
No. The requirement is that the de facto relationship existed for at least the 12 months ending immediately before the application, not that you shared an address for that whole time. Section 5CB of the Migration Act says the two people must live together, or not live separately and apart on a permanent basis. Periods apart for work, study, visa problems or family reasons can still count, but you will need to explain them and show the relationship continued.
When does the 12 months start counting?
It starts when the relationship met the legal test in section 5CB of the Migration Act, not when you first met or first started dating. That test requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, living together or not living separately and apart on a permanent basis, and that you are not related by family. The date you nominate should be one you can support with evidence.
Does time after we lodge the application count towards the 12 months?
No. Regulation 2.03A of the Migration Regulations requires the 12-month period to end immediately before the date of the application, so the clock stops at lodgement. Time that passes while the application is being processed does not make up a shortfall at the time you applied.
Do same-sex couples have to meet the same de facto rules?
Yes, and the rules are the same. Section 5CB of the Migration Act says a person is the de facto partner of another person whether of the same sex or a different sex. The same 12-month requirement, the same definition and the same evidence categories apply.
Is it easier to apply as a married couple than as de facto partners?
The 12-month requirement in regulation 2.03A only applies where a person claims to be in a de facto relationship, so a married couple can lodge without waiting 12 months. Every other requirement is the same, including that the relationship is genuine and continuing, and a marriage does not remove the need for evidence.
Sources
Keep reading
Genuine and Continuing Relationship: How Home Affairs Assesses It
How Home Affairs decides if a partner visa relationship is genuine and continuing — the four matters in the Migration Regulations and what case officers look for.
Read the guide →
Spouse (Married Partner) Requirements for the 820
What married couples must show for the subclass 820 — the section 5F definition of spouse, a valid marriage, no 12-month rule, and why a certificate is never enough.
Read the guide →
Exemptions from the 12-Month De Facto Requirement
Ways around the 12-month de facto rule for the 820 — a registered relationship, compelling and compassionate circumstances, and subclass 300 holders.
Read the guide →