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Successful partner visas overcome the 12 month rule

Partner visa applications take up about 25% of Australia's migration intake. There are two types. Firstly, Spouse Visas (for married or de-facto heterosexual couples). Secondly, Interdependency Visas (mainly for gay or lesbian couples).

To apply for a Spouse Visa for a married couple, the marriage has to be recognized under Australian law. It does not have to be conducted in Australia.

The rules for de-facto couples and gay or lesbian couples are very similar. Generally both require the couple to have lived together for 12 months. The 12 month rule and the exceptions to it are discussed in this article.

What is the 12 month rule?

Generally the applicant has to be in a spousal or interdependent relationship for 12 months prior to the application being lodged.

In other words, for 12 months before the application the couple need to be living with each other. If this is not the case then any separation must be temporary only (with evidence of the ongoing relationship).

What exceptions exist to the 12 month rule?

In some circumstances a person can apply without waiting the 12 months. The Department of Immigration says you can apply immediately if:

  • You have a child together of the relationship; or
  • The couple cannot return to live in the applicant's home country (to get to the 12 months).

A 9 December 2003 High Court case illustrates that last bullet point. It is unlawful for gay relationships to be openly conducted in several countries in the world. The 2003 refuge case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S [2003] HCA 71 illustrates that the oppressive conditions for gay men living in Bangladesh would be an example of where a gay or lesbian couple cannot openly live together.

There are other circumstances which might be acceptable to the Department, especially where the sponsor would greatly benefit by being with the applicant (by the applicant attending to the sponsor's physical infirmity, or where the sponsor's mental well being will be assisted).

Can the 12 months accumulate from separate periods?

The answer is yes, they can. A couple does not need to live continuously for the 12 month period. You can add up different periods of living together to meet the 12 month rule (with periods of separation also being counted, if the relationship continues through that time).

Recommendation

Often couples form a commitment during a visit of some weeks, after previously corresponding by email or phone. This may well form the beginning of the relationship, for immigration purposes.

I strongly advise that some period of living together be done. Applicants need to demonstrate a committed relationship, and this may be difficult to evidence if the couple have never cohabitated (unless falling into one of the exceptions discussed above).

This article is a general discussion on legal requirements. Email or call me for advice on your specific facts. After an initial dialogue to assess needs, I will provide you with fees information for further assistance.


Author:

Paul Hense BA, LLB, BSW (University of Sydney), Principal, Paul Hense Migration Lawyers

Tel (61 2) 9262 4242  |  Email: paul.hense [AT] henselaw.com.au

Mr Hense has been a migration lawyer since 1994. He has run a number of landmark cases, including before the High Court of Australia. He frequently represents clients before the Migration Review Tribunal and Refugee Review Tribunal. He has lectured for the University of NSW on refugee law and for the Immigration Advice and Rights Centre.  From 1990 and until recently he was a volunteer with the Immigration Advice and Rights Service. Previously he was a Senior Research Officer for the Australian Taxation Office.


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