For a partner visa, spouse means what section 5F of the Migration Act 1958 says it means and de facto partner means what section 5CB says it means. Neither term takes its ordinary meaning. This page sets out the current text of both sections, the two regulations that say how the conditions in them are determined, and the extra criteria that apply only to de facto applicants. The text was read from the Federal Register of Legislation on 23 September 2026; check the current compilation of the Migration Act 1958 and the Migration Regulations 1994 before relying on it.
Section 5F of the Migration Act 1958 — spouse
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if: (a) they are married to each other under a marriage that is valid for the purposes of this Act; and (b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and (c) the relationship between them is genuine and continuing; and (d) they: (i) live together; or (ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
A note to the section records that section 12 of the Act also affects whether the condition in paragraph (2)(a) exists. Paragraph (2)(a) is the only limb that turns on marriage law rather than on the facts of the relationship: the marriage must be valid for the purposes of the Act, which draws on the Marriage Act 1961.
Section 5CB of the Migration Act 1958 — de facto partner
5CB De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but: (a) they have a mutual commitment to a shared life to the exclusion of all others; and (b) the relationship between them is genuine and continuing; and (c) they: (i) live together; or (ii) do not live separately and apart on a permanent basis; and (d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4) For the purposes of paragraph (2)(d), 2 persons are related by family if: (a) one is the child (including an adopted child) of the other; or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or (c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
The two definitions are mutually exclusive. Section 5CB(2) applies only where the couple are not in a married relationship for the purposes of section 5F, which is why a couple cannot hold both statuses at once for visa purposes. Compare married spouse requirements with de facto partner requirements for what each route means in practice.
Regulation 1.15A — spouse
Regulation 1.15A of the Migration Regulations 1994 is made for subsection 5F(3). Subregulation (1) states that it "sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist".
Subregulation (2) provides that if 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 last two being the 801 and the 820 — "the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)". Subregulation (4) makes those matters discretionary for other visa classes. Subregulation 1.15A(3) is the operative list:
(3) The matters for subregulation (2) are: (a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or other major assets; and (ii) any joint liabilities; and (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and (iv) whether one person in the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day-to-day household expenses; and (b) the nature of the household, including: (i) any joint responsibility for the care and support of children; and (ii) the living arrangements of the persons; and (iii) any sharing of the responsibility for housework; and (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married to each other; and (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and (iii) any basis on which the persons plan and undertake joint social activities; and (d) the nature of the persons' commitment to each other, including: (i) the duration of the relationship; and (ii) the length of time during which the persons have lived together; and (iii) the degree of companionship and emotional support that the persons draw from each other; and (iv) whether the persons see the relationship as a long-term one.
Regulation 1.09A — de facto partner and de facto relationship
Regulation 1.09A is the mirror provision, made for subsection 5CB(3). Subregulation (1) states that it "sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist", and carries a note referring the reader to regulation 2.03A for the prescribed criteria applicable to de facto partners.
Subregulation 1.09A(2) lists the same four partner visa classes and imposes the same obligation: the Minister "must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)". Subregulation (4) again makes them optional for other classes.
Subregulation 1.09A(3) sets out the four matters in the same order, with the same sub-items, in the same words as regulation 1.15A(3) — with one exception. Paragraph (c)(i) reads:
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and
Key facts
That sub-item is the only textual difference between the four matters in regulation 1.15A(3) and those in regulation 1.09A(3). Married applicants are assessed on whether they hold themselves out as married; de facto applicants on whether they hold themselves out as being in a de facto relationship. Every other word of the two lists is identical.
What this means for evidence is set out under genuine and continuing relationship.
Regulation 2.03A — criteria applicable to de facto partners
Regulation 2.03A adds criteria that apply only where a person "claims to be in a de facto relationship for the purposes of a visa application". There is no equivalent for married applicants.
Age. Subregulation 2.03A(2) prescribes that, where such a person applies for a visa, "the applicant is at least 18" and "the person with whom the applicant claims to be in a de facto relationship is at least 18".
The 12-month rule. Subregulation 2.03A(3) provides that, subject to subregulations (4) and (5), if such a person applies for one of a list of visas that includes a Partner (Temporary) (Class UK) visa and a Partner (Provisional) (Class UF) visa, and "the applicant cannot establish compelling and compassionate circumstances for the grant of the visa", then:
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 points are easy to miss. The period must end immediately before the date of the application, so it is counted backwards from lodgement and cannot be made up afterwards. And the compelling-and-compassionate limb sits in paragraph (3)(b), so the 12-month requirement applies only where that limb is not established.
The exceptions. Subregulation 2.03A(4) disapplies subregulation (3) where the applicant is in a de facto relationship with a person who is, or was, the holder of a permanent humanitarian visa and who informed the Department of the relationship before that visa was granted, or with an applicant for a permanent humanitarian visa. Subregulation 2.03A(5) provides that subregulation (3) "does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901". The registers that qualify are prescribed by the Acts Interpretation (Registered Relationships) Regulations 2019. See registering your relationship and exemptions from the 12-month rule.
How these definitions are used in Part 820
Part 820 of Schedule 2 does not restate any of this. Clause 820.211(2)(a) simply requires that "the applicant is the spouse or de facto partner of" an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and a note to clause 820.111 sends the reader to section 5CB and regulation 1.09A for de facto partner, and to section 5F and regulation 1.15A for spouse. The definitions above therefore do the work in every partner visa decision, at time of application and again at time of decision. The mechanics are on the subclass 820 regulations.
An application that quotes the definitions but does not organise its evidence against the four matters is common, and closing that gap is the kind of work an immigration lawyer does; applications prepared that way are more likely to succeed. No one can promise an outcome.
What to do next
If you are choosing between the two routes, read married or de facto. For the criteria that sit on top of these definitions, go to the subclass 820 regulations, and for the wider structure, the law behind the partner visa.
Common questions
What is the legal definition of a de facto partner for an Australian partner visa?
Section 5CB of the Migration Act 1958 says 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, the relationship between them 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. Regulation 1.09A of the Migration Regulations 1994 sets out the matters the Minister must consider in deciding whether those conditions exist.
What is the difference between regulation 1.15A and regulation 1.09A?
Regulation 1.15A applies to married spouses and regulation 1.09A to de facto partners. The four matters they list are word for word the same except in one place. Regulation 1.15A(3)(c)(i) asks whether the persons represent themselves to other people as being married to each other, and regulation 1.09A(3)(c)(i) asks whether they represent themselves as being in a de facto relationship with each other.
How long must a de facto relationship have lasted before you can apply?
Regulation 2.03A(3) of the Migration Regulations 1994 requires the Minister to 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. It does not apply if the applicant can establish compelling and compassionate circumstances for the grant of the visa, and subregulation 2.03A(5) disapplies it where the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901.
Do both partners have to be 18 for a de facto partner visa?
Yes. Regulation 2.03A(2) prescribes that the applicant is at least 18 and the person with whom the applicant claims to be in a de facto relationship is at least 18.
Does the Migration Act require a couple to live together?
Not in every case. Both section 5F and section 5CB are satisfied if the two people live together or do not live separately and apart on a permanent basis. The second limb allows for periods apart, but a permanent separation defeats the definition.
Sources
Keep reading
The Migration Regulations for Subclass 820, Explained
A clause-by-clause guide to subclass 820 in the Migration Regulations 1994 — Schedule 1 item 1214C, Part 820 of Schedule 2, and Part 801 in brief.
Read the guide →
How Home Affairs Policy (PAM3) Guides Partner Visa Decisions
What the Procedures Advice Manual is, why it is not law, how a delegate must still apply the Migration Act and Regulations, and how the Tribunal treats departmental policy.
Read the guide →
Partner Visa Statistics and Program Planning Levels
Where partner visa statistics and Migration Program planning levels are published, what lodged, granted and on hand mean, and why a backlog is not a processing time.
Read the guide →