Defining a relationship for partner visa purposes

Defining a relationship for partner visa purposes

Relationships between human beings for partner purposes are varied and many. However for migration law purposes it is most important to specify what part of the relationship one may be talking about in the evidentiary process. The law recognises that arranged marriages are valid marriages, and institutions like marriage by proxy are valid marriages. At times the Full Federal Court has held that being in love in a romantic sense is not necessarily an essential requirement.

In gathering evidence and making submissions it is important to make distinctions about the romantic stage of the relationship and the ‘defacto’ stage. The romantic stage can be variously described like boyfriend-girlfriend, friendship and/or romantic stage. However it is important to make that distinction. Let’s start with the easiest example of two people of the opposite sex who meet, develop a romantic interest in each other, fall in love and then reach the stage of de facto relationship.

In the early stages, events can be described as either in the boyfriend-girlfriend stage (or boyfriend stage or girlfriend stage for same sex relationships), perhaps later the romantic or falling in love stage and finally being in a ‘de facto’ relationship.  Merely sharing a bedroom does not necessarily mean the parties are in a ‘de facto’ relationship. What defines a ‘de facto’ relationship are a combined consideration of the 4 factors set out in Reg 1.15A, ie 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.   

None of those 4 factors are mandatory, for example if one party is living in Australia and the other in the country of origin, the nature of the household may not figure prominently but even then one would have to provide evidence of how the parties live when the Australian partner goes to the country of origin for a visit.

Parties to a relationship may share a bedroom but the other aspects of the relationship do not necessarily mean the parties are in a ‘de facto’ relationship. Most relationships evolve from a social connection to a closer social connection and then to some intimacy and then finally to integrating their lives so that they are genuinely in a ‘de facto’. One may not be able to say with precision as to exactly when a relationship evolved to the ‘de facto’ stage. It may be in many cases that one can only identify that point by looking back on the evidence.

The point has to be made therefore in constructing the evidence, that it is necessary to identify what stage the relationship is at, at that chronological point in the evidence. For example, when we were in the boyfriend-girlfriend stage of our relationship [we did the following social things] etc.

Of course if there is a child to a relationship then that is a significant factor and often the period up to the mother falling pregnant could be a defining moment as to when a ‘de facto’ relationship started (although, obviously not always).

Finally as a practice point one needs to look at the regulation and follow that regulation in terms of setting out the evidence. Item 1124B(3)(e) states :

(iii)  must provide, at the same time and place as making the application, 2 statutory declarations each of which:

(A)  is made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the partner; and

(B)  declares that the applicant and the partner are in a married relationship or de facto relationship; and

(C)  was declared no more than 6 weeks before the day on which the application for the Partner (Residence) (Class BS) visa was made.

Item 1124B sets out the necessary requirements for a valid permanent residence subclass 801 Partner visa which must be made at the same time and place as the temporary visa, subclass 820 Partner visa. Subparagraph 1124B(3)(e)(iii) must be complied with if a person is affected by a s 48 bar. This subparagraph is a type of anti-fraud measure designed to have two persons living in Australia declare in a statutory declaration that the two partners are in the relevant relationship  As the regulation states that the deponents must ‘declare’ that the visa applicant and partner are in a ‘de facto’ or ‘married relationship’ then the statutory declaration must state, “I declare that X and Y are in a de facto relationship” [or married relationship as the case may be]. The rest of the statutory declaration should give the factual details to allow the deponent to make that statement. Making a false statutory declaration is a criminal offence, hence requiring two independent people to each make a statutory declaration which ‘declares that the applicant and the partner are in a married relationship or  de facto relationship ’ adds a layer of seriousness to the application.  

If each statutory declaration does not contain that declaration that ‘I declare that X and Y are in a de facto relationship’ then it will NOT be a valid statutory declaration for the purpose of subparagraph 1124B(3)(e)(iii). If it is not a valid statutory declaration then a valid visa application is NOT made!

Finally, the regulations do not refer to the sexual side of a spousal relationship. However not mentioning the sexual side may raise suspicion in the eyes of a decision maker. A simple statement like this will suffice :

‘We share a bedroom at X address. Describe the room and then add something like, we share a ‘double bed [or Queen size bed etc] and we enjoy a healthy sexual relationship.’  This should not be formulaic but should be addressed in each spouse case, assuming sex relations are part of that particular relationship.