Australian Immigration Article

Question 1: Are We Legally a ‘Couple’ in the Department’s Eyes? (Spouse or De Facto)

Before anything else, you must meet the foundational requirement: are you legally considered a spouse or a de facto partner? This is the first hurdle.

For a Spousal Relationship: This seems straightforward, but it has its complexities. You must be legally married to your Australian citizen, permanent resident, or eligible New Zealand citizen partner. The marriage must be valid under Australian law. If you were married overseas, your marriage generally needs to be legally recognised in the country where it took place to be considered valid in Australia.

For a De Facto Relationship: If you aren’t married, the Department defines a de facto relationship as one that has existed for at least 12 months immediately before you apply for the visa. This 12-month clock starts from when you entered into a committed de facto relationship, which is often much later than when you first started dating.

Is there a way around the 12-month rule? Yes, in specific circumstances. The most common is by registering your relationship with a relevant Australian State or Territory government. This formalises your union in the eyes of the law and can waive the 12-month minimum requirement. However, not all states offer this, and each has its own eligibility rules.

So, the first checkpoint for your timing is this: are you legally married, or have you either met the 12-month de facto rule or successfully registered your relationship?

(Whether you are legally married or in a de facto relationship is the first legal hurdle in the partner visa application process.)

Question 2: Can We Prove Our Relationship is Genuinely ‘Real’?

Once you’ve established your legal status as a couple, you face the next, more subjective challenge: proving that your relationship is “genuine and continuing” (i.e. Genuine relationship evidence). This is where many DIY applications fall short.

The Department assesses your relationship against four key pillars. The best time to apply is when you have substantial documentary evidence covering all four of these areas:

• Financial Aspects: How do you share your financial lives? 

• Nature of the Household: How do you live together? 

• Social Aspects: How are you seen as a couple by the public and your loved ones? 

• Nature of the Commitment: How do you demonstrate your long-term plans? 

The right time to apply is when you look at these four pillars and can say, “We have strong, consistent evidence for each one”.

(Compiling strong genuine relationship evidence across the four pillars of your relationship is crucial to proving your union is genuine and continuing.)

Question 3: Is My Partner Eligible to Be My Sponsor?

This question is often overlooked, but it can be a complete roadblock. Imagine having a perfect application, only to discover your partner cannot sponsor you.

Before applying, you must confirm your sponsoring partner:

1. Is an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen.

2. Meets the character requirements to be a sponsor. This can involve a review of their criminal history, especially if a minor child is included in the visa application.

3. is not subject to sponsorship limitations. Generally, a person can only sponsor two partners in their lifetime. Furthermore, there is usually a five-year waiting period between sponsoring one partner and being able to sponsor another.

While waivers for these limitations exist in very specific, compelling circumstances, they are not granted lightly. Determining your sponsor’s eligibility is a non-negotiable step in planning your application timing.

Question 4: Do I Meet the Health and Character Requirements?

While a partner visa primarily focuses on your relationship with your sponsor and the sponsor’s eligibility, it’s also about you as an individual applicant. The Department will carefully assess whether you meet the health and character requirements, just as they do for any other visa application. Meeting these requirements is essential for the grant of your partner visa. You must meet Australia’s strict health and character criteria.

The Health Requirement (PIC 4007): The purpose of the health check is to protect the Australian community from public health risks and to control public spending on health services. If you have a medical condition that is likely to result in “significant” healthcare costs, you may not pass the health assessment. For partner visas, a “health waiver” may be available if the potential costs are not deemed an “undue” burden on the community. This is a highly complex area, and if you have any ongoing health concerns, it’s vital to understand your position before you apply.

The Character Requirement (s501 Test): You must demonstrate that you are of good character. This involves a review of your past and present conduct, including any criminal history in Australia or any other country. Even charges that did not result in a conviction may need to be declared and assessed. If you have any character issues, no matter how minor you think they are, it is essential to address them properly from the outset.

The best time to apply is after you have a clear picture of any potential health or character issues and a strategy to address them.

(Meeting the health and character requirements is a non-negotiable part of every Australian partner visa application.)

Question 5: Should We Apply Onshore or Offshore?

This final question is about logistics and strategy, and it has a significant impact on your life while you wait for a decision.

Applying Onshore (within Australia) (‘Onshore Partner Visa‘): To apply onshore, you generally must hold another valid (substantive) visa at the time of application.

• Key Question: When does my current visa expire? You need to have gathered all your evidence and be ready to lodge before it runs out. Lodging an onshore partner visa (subclass 820) application before your substantive visa expires will generally grant you a Bridging Visa A (BVA), allowing you to remain in Australia legally while you wait.

• What if I don’t hold a substantive visa? Applying onshore without a substantive visa introduces a major complication known as Schedule 3 criteria. To be granted the visa, you would need to demonstrate compelling and compassionate reasons for not holding a visa at the time of application and for the visa to be granted. Meeting Schedule 3 is exceptionally difficult and significantly raises the bar for approval.

Applying Offshore (outside Australia) (‘Offshore Partner Visa‘): If you apply offshore for a partner visa (subclass 309), you must be outside Australia when the visa application is lodged.

• Key Questions: Have we considered the processing times? Are we prepared to be apart for some of that time, or can we be together outside Australia? Is there a pathway for me to visit Australia on another visa (like a visitor visa) before I apply or while I wait?

The decision between an onshore and offshore application shapes your next few years. Your ability to work in Australia, travel and be with your partner all depend on this choice. The best time to apply is when you have a clear plan based on your visa status and personal needs.

(The choice between an onshore and offshore application will significantly shape your plans and ability to travel while you wait for a decision.)

Tying It All Together

So, when is the best time to apply? It’s when you can confidently answer “yes” to these questions:

1. We meet the legal definition of a spouse or de facto couple.

2. We have collected comprehensive evidence across all four relationship pillars.

3. My sponsoring partner is eligible and has no sponsorship limitations.

4. We are prepared to meet the health and character requirements.

5. We have a clear strategy for applying either onshore or offshore based on our visa status and life plans.

Answering these questions requires careful thought and preparation. As every couple’s story is different, your ideal timeline will be unique to you. Getting these foundational elements right from the start is the most important step you can take.

Navigating the complexities of these requirements is what we do every day. With over 8 years of dedicated experience in Australian immigration law, our Principal Lawyer, Jay, has guided countless couples in finding their “best time” to apply. If you’re working through these questions and need direction, we invite you to book a consultation so we can help you build a pathway for your future in Australia.

(A one-on-one consultation can provide direction and a clear strategy for your unique partner visa circumstances.)