Partner Visa (Australia) – Married or De Facto

You could be granted a Subclass 820/801 or Subclass 309/100 Partner visa if:

• Your partner is an Australian citizen, permanent resident or an eligible New Zealand citizen.

• You are married or can show that you have lived together with your partner in a ‘de facto’ relationship for 12 months.

The 12-month cohabitation can be waived if the couple registers their relationship in the state they live in. Relationship registration is only available for people living in certain Australian states.

Relationship registration in Queensland, Victoria, Australian Capital Territory or New South Wales:

The registration process is different in each state and not all states allow couples to register. If you can register your relationship, you can lodge a Subclass 820 partner visa application without having lived together for the 12 months prior to lodging the visa. You must however be living together when your 820 partner visa is lodged.

For example, to register your relationship in New South Wales, you’ll need to prove that neither of you are married and that one of you has lived in NSW for a short period of time. Registering your relationship in NSW is crucial if you have not lived together for 12 months prior to lodging the application.

To register your relationship in Queensland, you’ll need to prove that neither of you are married and that at least one of you has lived in Queensland for a minimum of 6 months. You must register your relationship in Queensland to be able to lodge the Subclass 820 visa, if you have not lived together for the most recent 12 month period.

To register your relationship in Victoria, you’ll need to prove that neither of you are married and that at least one of you has lived in Victoria for a short period. Victorian relationship registration is essential if you have not lived together for the past 12 months.

To register your relationship in the Australian Capital Territory (ACT), you’ll need to show that neither of you are married and that one of you is ‘usually’ resident in the ACT. An ACT relationship registration allows you to apply for a Subclass 820 partner visa if you have not lived together for 12 months.

We can provide detailed information on relationship registration requirements.

Showing evidence of your genuine and ongoing relationship

In relation to a Subclass 820/801 Partner visa application you must be living together when the visa is lodged. You need to show evidence of your shared life, such as financial commitment to one another, shared living and social recognition of your relationship. We help you put together your evidence to demonstrate your commitment to each other.

A permanent residency partner visa straight away

If you have been living your partner for at least 3 years prior to your application – or you have a child together and have lived together for the previous 2 years, you can apply for the Subclass 801 visa straight away (i.e. without having to hold the Subclass 820 (temporary residence) Partner visa first.  It is ultimately at the discretion of the Department as to whether they will grant the permanent residence visa straight away but if you meet either/both of these policy criteria then you have a good chance.

If this does not apply to you, the Subclass 820 visa application must be submitted first before you can apply for permanent residency. Once 24 months has passed since your first visa application, you can then apply for the Subclass 801 permanent residency visa, by showing that you are still a legitimate couple.

Onshore Partner visas and work rights

If you hold an eligible visa and you lodge your Partner visa, you transition on to ‘Bridging Visa A’ or a BVA when the first eligible visa expires. You have full work rights on your BVA, during the partner visa processing time and you can also obtain a temporary Medicare card for medical services.

It should also be noted that if you lodge a partner application whilst holding a 457 visa, you cannot stop working for the sponsor until your Subclass 820 visa is granted.

If you hold a Working Holiday 417 visa and lodge a partner visa, we can help you apply for a work rights wavier, allowing you to remain working longer that the allowed six months, for one employer.

It currently takes the Department approximately 12 - 15 months to process the Partner visa application.

Please contact us if you would like further information, advice and assistance, including an initial consultation. 

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Binding Financial Agreements (BFA)

Parties can enter into a BFA before marriage (s 90B), during the marriage (s 90c), after a divorce (s 90D), before entering into a de facto relationship (s 90UB), during a de facto relationship (S 90UC) or after the breakdown of a de facto relationship (s 90 UD). Both heterosexual and same-sex (LGBT) couples can enter into a BFA.

A Binding Financial Agreement (or BFA) is a written document signed by both parties to a relationship which contains provisions about the division of property in the event of a separation. It must comply with either Part VIIIA or Part VIIIAB of the Family Law Act 1975 and parties to the Agreement must obtain independent legal advice about the Agreement.

A Binding Financial Agreement is often referred to as Prenuptial Agreement (prenup or prenups), Cohabitation Agreement, Postnuptial Agreement (postnup or postnups), Property Settlement Agreement or Divorce Settlement Agreement.

Binding Financial Agreements entered into prior to or during a Marriage or De Facto Relationship

Advantages

1. It allows parties to protect assets and financial resources which existed prior to the relationship from a claim for division after separation.

2. It allows parties to protect an inheritance or gift they received prior to the relationship, during the relationship or after separation.

3. In some circumstances, it allows parties to remove their respective responsibilities towards the other to provide spousal maintenance.

4. It provides a degree of certainty to the parties as to how their assets, financial resources and liabilities will be treated in the event they separate and remove any anxieties they may have about entering into a relationship in the first place.

5. It allows parties to be clear about the responsibility of debts such as credit card debts, home loan, personal loans, business loans, etc.

6. In conjunction with a will, it allows parties to plan their estate and ensure that their children, especially any children from previous relationships, are not disadvantaged in the division of the estate.

7. It allows parties to determine their property settlement without the intervention of the Courts and costly legal disputes.

Examples of when a Binding Financial Agreement may be useful

1. When one party has significantly more assets and financial resources than the other, a BFA (whether entered into before or during the relationship) allows that party to keep those assets and financial resources safe from the other in the event that they separate.

2. When both parties have significant assets and financial resources and they both wish to quarantine those assets and financial resources from the other in the event that they separate.

3. When one or both parties have children from previous relationships and wish to protect all or part of their assets and financial resources for their children.

Binding Financial Agreements entered into after separation

Advantages

1. It allows parties to keep the terms of their settlement agreement away from the eyes of the Courts, the Australian Taxation Office (ATO) and other persons and organizations.

2. It allows the parties more flexibility in how they wish to determine their financial matters.

3. In some circumstances, it allows parties to remove their respective responsibilities towards the other to provide spousal maintenance.

Examples of when a Binding Financial Agreement may be useful

1. When parties have complex property, business or trust arrangements which they wish to keep as private as possible.

2. When the settlement terms are more in favour of one party and as a result may not be approved by a Court.

3. When the parties need a quick resolution to their financial affairs and wish to avoid an agreement which requires the review and approval of a Court (consent orders).

We have a competent and approachable team of family lawyers who is able to assist you in determining the right kind of Binding Financial Agreement for your circumstances. We recommend you contact us on 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au.

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