It changes nothing about how the Department of Home Affairs assesses whether your relationship is real, and it adds nothing to the evidence you have to file.
This page sets out what differs and what does not. It does not tell anyone to marry. That is a decision about your life, and the visa consequences of it are narrower than most people assume.
| Married spouse | De facto partner | |
|---|---|---|
| Definition | Section 5F, Migration Act 1958 | Section 5CB, Migration Act 1958 |
| The relationship itself must be | Genuine and continuing, with a mutual commitment to a shared life as a married couple to the exclusion of all others, living together or not living separately and apart on a permanent basis | Genuine and continuing, with a mutual commitment to a shared life to the exclusion of all others, living together or not living separately and apart on a permanent basis |
| Extra element | A marriage valid for the purposes of the Act | Not in a married relationship with each other, and not related by family |
| Minimum duration before lodging | None | 12 months ending immediately before the application (regulation 2.03A), subject to exemptions |
| Age | In most cases 18 or older | Both people must be at least 18 (regulation 2.03A(2)) |
| Four prescribed matters | Regulation 1.15A | Regulation 1.09A |
| Effect of registering the relationship | Not relevant | Removes the 12-month requirement |
The legal difference: section 5F and section 5CB
Section 5F(2) says two people are in a married relationship if they are married to each other under a marriage valid for the purposes of the Act, they have a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing, and they live together or do not live separately and apart on a permanent basis.
Section 5CB(2) says 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, they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, they live together or do not live separately and apart on a permanent basis, and they are not related by family.
Read them side by side and three of the four elements are identical. The definitions are also expressly neutral as to sex: both say the definition applies whether the two people are of the same sex or a different sex. See same-sex couples and legal definitions of spouse and de facto.
The married route carries its own gate that the de facto route does not: the marriage has to be valid for the purposes of the Migration Act, which is a narrower test than general Australian recognition. For a marriage solemnised overseas, section 12 of the Act applies Part VA of the Marriage Act 1961 as if section 88E of that Act were omitted. A marriage that fails that test does not satisfy section 5F(2)(a), and the application then has to stand as a de facto one. See overseas marriages.
The 12-month rule, and who escapes it
Regulation 2.03A(3) of the Migration Regulations 1994 is the rule people mean when they say marriage is easier. Where a person claims to be in a de facto relationship and applies for one of the listed visas — including the Partner (Temporary) (Class UK) visa that contains the subclass 820 and the Partner (Provisional) (Class UF) visa that contains the subclass 309 — and the applicant cannot establish compelling and compassionate circumstances for the grant of the visa, the Minister must be satisfied 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.
Three things cut it down.
- Registration. Regulation 2.03A(5) says the requirement does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901. Registration under a state or territory scheme is a deliberate, dated act with its own eligibility rules, and not every state has a registry. See registering your relationship.
- Permanent humanitarian visas. Regulation 2.03A(4) disapplies the requirement where the applicant is in a de facto relationship with a person who holds or held a permanent humanitarian visa and the relationship was made known to the Department before that visa was granted, or with a person who is an applicant for a permanent humanitarian visa.
- Compelling and compassionate circumstances. The requirement in subregulation (3) only engages where the applicant cannot establish compelling and compassionate circumstances for the grant of the visa.
Each is covered in detail elsewhere on this site. The timing point is worth repeating here: the 12 months must end immediately before the date of the application, so time that passes while the application waits in the queue does not repair a shortfall at lodgement.
Marriage removes the 12-month question and proves nothing else
A marriage certificate establishes one fact: that a marriage took place, on a date, between two named people. In the structure of section 5F, it goes to paragraph (2)(a). It does not establish the mutual commitment to a shared life, the genuine and continuing nature of the relationship, or the living arrangements — and those are where the assessment actually happens.
This is the most common miscalculation on the married route. Couples with a certificate lodge a thin file on the assumption that the legal relationship settles the question, and the decision then turns entirely on financial, household and social material they never provided. See relationship evidence.
The four matters are assessed identically
Regulation 1.15A applies to married couples and regulation 1.09A applies to de facto partners. Both say that where the Minister is considering an application for a Partner (Migrant) (Class BC), Partner (Provisional) (Class UF), Partner (Residence) (Class BS) or Partner (Temporary) (Class UK) visa, the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
Those matters are word for word the same in both regulations:
| Heading | What it includes |
|---|---|
| Financial aspects | Joint ownership of real estate or other major assets, joint liabilities, the extent of any pooling of financial resources especially for major commitments, whether one person owes a legal obligation in respect of the other, and the basis of any sharing of day-to-day household expenses |
| Nature of the household | Joint responsibility for the care and support of children, the living arrangements of the persons, and any sharing of responsibility for housework |
| Social aspects | How the couple represent themselves to other people, the opinion of friends and acquaintances about the nature of the relationship, and the basis on which the couple plan and undertake joint social activities |
| Nature of the commitment | The duration of the relationship, the length of time the persons have lived together, the degree of companionship and emotional support drawn from each other, and whether the persons see the relationship as a long-term one |
There is a single textual difference between the two regulations, and it is in the social aspects heading. Regulation 1.15A(3)(c)(i) asks whether the persons represent themselves to other people as being married to each other. Regulation 1.09A(3)(c)(i) asks whether they represent themselves as being in a de facto relationship with each other. That is the whole of it.
Watch out
duration is a matter the Minister must consider under both regulations, at paragraph (3)(d)(i). Marrying does not shorten a relationship's history or thicken its record. A couple who married after six months is still a couple with six months of documents.
Does marrying before you lodge help?
Only in the narrow case where the 12-month rule is the obstacle and no exemption reaches you — and only if the marriage is valid for the purposes of the Act and is the truth of your relationship rather than a step taken for a visa. In every other situation, marrying before lodging changes the label on the application and leaves the assessment where it was.
Two practical points sit underneath that. Marrying in Australia has its own notice requirements and a waiting period before a ceremony can be held, which is a planning matter rather than a migration one — see getting married in Australia. And a relationship presented one way in the application and another way in the evidence is worse off than one presented consistently either way.
An application prepared by an immigration lawyer is more likely to succeed on this question, because the error it turns on is a date. De facto applicants lodge a few weeks early, or nominate a start date drawn from memory that the evidence does not support, and neither can be repaired after lodgement. Married applicants make the opposite mistake and under-evidence the three elements the certificate does not touch. No one can promise an outcome.
What to do next
Decide which definition your relationship actually meets today, not which one you would prefer. If you are married, confirm the marriage is valid for the purposes of the Act and then work through married spouse requirements. If you are de facto, count the 12 months carefully against section 5CB and read exemptions from the 12-month rule before you lodge anything. Either way, the file you build is the same, and genuine and continuing relationship explains what each of the four matters asks for. To compare the visa options themselves, see comparing the partner visa options.
Common questions
Is a married partner visa application easier than a de facto one?
It removes one requirement and nothing else. Regulation 2.03A of the Migration Regulations 1994 requires a person who claims to be in a de facto relationship to have been in that relationship for at least the 12 months ending immediately before the application, unless an exemption applies. Married applicants are not subject to that rule. Every other part of the assessment, including the four matters the Minister must consider, is the same.
What is the legal difference between a spouse and a de facto partner?
A spouse is defined in section 5F of the Migration Act 1958 and a de facto partner in section 5CB. Both require a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or do not live separately and apart on a permanent basis. Section 5F adds that the couple are married under a marriage valid for the purposes of the Act. Section 5CB adds that they are not in a married relationship with each other and are not related by family.
What are the exemptions from the 12-month de facto rule?
Regulation 2.03A sets out three. The rule does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901. It does not apply where the applicant is in a de facto relationship with a person who holds or held a permanent humanitarian visa and the relationship was made known to the Department before that visa was granted, or with a person who is an applicant for a permanent humanitarian visa. And the requirement itself does not bite where the applicant can establish compelling and compassionate circumstances for the grant of the visa.
Does getting married before we lodge make the application stronger?
It changes what has to be proved, not how convincing the file is. Marriage satisfies one element of the section 5F definition and removes the 12-month question. It does not establish a mutual commitment to a shared life, a genuine and continuing relationship, or the living arrangements, and it adds nothing to the financial, household, social and commitment evidence the Minister must consider. Whether to marry is a personal decision, not a visa strategy.
Are same-sex couples assessed differently?
No. Sections 5F and 5CB of the Migration Act 1958 both state that the definition applies whether the two people are of the same sex or a different sex. The same relationship test, the same prescribed matters and the same 12-month de facto rule apply.
Sources
- Migration Act 1958, sections 5F and 5CB (Federal Register of Legislation)
- Migration Regulations 1994, regulations 1.09A, 1.15A and 2.03A (Federal Register of Legislation)
- Acts Interpretation Act 1901, section 2E (Federal Register of Legislation)
- Subclass 820 Partner visa (temporary), Department of Home Affairs
Keep reading
820 vs 309: Onshore vs Offshore Partner Visa
The onshore 820 against the offshore 309 — where you must be, the bridging visa, work rights, travel, Medicare, and what happens if you leave Australia.
Read the guide →
820 vs 300 Prospective Marriage Visa
The prospective marriage visa (subclass 300) compared with applying for the 820 — who it is for, what it requires, and the reduced charge at the 820 stage.
Read the guide →
Partner Visa vs Skilled Visa for Couples
Partner visa or skilled visa when the applicant could qualify either way - what each test actually depends on, how the costs are structured, and where each one ends.
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