The 12 Months Defacto Rule - What it REALLY Means

Whenever I talk to couples about the 12 months rule, I think one of the things that couples get the most confused by or perhaps don't understand about the 12 months rule is that there is a big difference between being able to show that you have been in a de facto relationship for 12 months, versus being able to show that you have been in a relationship for 12 months.

So to clarify, the 12 months rule is not about showing the Australian government that you have been with your partner for 12 months. That’s not the focus of the 12 months rule. The 12 months rule specifically requires that you have been living together to some degree or, at least, that the four aspects of your relationship, one of them being cohabitation, show that you've been together as a defacto couple 12 months prior to lodgement.

For example, if we look at a timeline for any typical relationship, it often goes something like this;

MILESTONE 1) The couple meets. This is pretty self-explanatory!

MILESTONE 2) The couple begins exclusively dating which is the period where your relationship is developing, it's progressing. You're starting to meet each other's families, you're starting to do things together, you might take some holidays together, you might start thinking about moving in together at some point in the future. Maybe you're starting to have plans or thoughts about your future together. During that period you are still in the early stages of your relationship. It's still a boyfriend/girlfriend, boyfriend/boyfriend or girlfriend/girlfriend relationship, but there is a point in time when all of this transitions from that, let's say young type of relationship, to a more mature, committed relationship. Perhaps you move in together, you start pooling your finances and making long term plans with each other. This is when you may be able to start claiming that you are in a de facto relationship.

MILESTONE 3) As above, there comes a point in your relationship when you transition away from an early phase relationship, to formally being able to show you are together as a de facto couple.

Now, the 12 months rule, which applies to the 820/801 and the offshore 309/100 requires that you have been in a de facto relationship for 12 months before applying for your visa.

That is what the 12 months rule means.

Put simply, there is a clear difference between when you commence your relationship to when you commence a relationship that you can evidence as being de facto.

I feel that this is one of the main things couples get confused over and perhaps they try to, either intentionally or accidentally, claim their defacto date too soon in their timeline.

So that's probably the first bit of homework that I can give you.

See if you can identify and very clearly separate those three key moments and periods in your relationship because they will be relevant not only to your evidence but the actual DHA application & sponsorship forms which will ask you for similar dates.

Point number two is that don't worry, necessarily, if you feel that you can't meet the 12 months rule, and you're at a point where you're looking to apply for your partner visa quickly.

Often there will be situations where a visa applicant is inside the country and they are on a visa that is expiring meaning that there is an urgency to apply for an onshore partner visa and secure the associated bridging visa.

Thankfully, however, there are simple yet effective strategies to waive the 12 months rule from the assessment of the relationship, the most common is by registering your relationship as a civil union. Unfortunately only registering your relationship in certain States/Territories will waive the 12 months rule (namely Victoria, New South Wales, Queensland, Tasmania & ACT).

In terms of just expanding a little bit further with regards to the process of applying for a civil union, another misconception is that you need to register the relationship before you apply for the visa. That is not the case and you can apply for your civil union after your visa is applied for should you need to for whatever reason.

So let’s consider a typical timeline of applying for a Partner visa from on-shore. Once the onshore application is submitted, we know that with current processing times it is likely to take 2+ years to be decided. Now, the law permits that you register your civil union at any point during the processing of your application and it will still remove the assessment of the 12 months rule from your relationship.

To clarify, however, you still need to be able to demonstrate that you were in a de facto relationship at the time your application was submitted (and eventually decided), however, you will not need to show that you were defacto 12 months prior to lodgement, which naturally is much harder to do given it is earlier in your relationship timeline.

I hope this helps explain what the 12 months rule really is, what it requires you as a couple to demonstrate and how you might be able to remove that from the assessment of your relationship

Let me know in the comments below if you have any questions and I will do my best to respond to each of you.

Source: Martin Salvo - Immigration Lawyer