4 Factors of A Genuine And Continuing Relationship

The Australian partner visa can be applied for either onshore or offshore.

When you apply onshore (in Australia), you are making a "combined" application for the subclass 820/801 partner visa from within Australia. When you apply offshore (outside Australia), you are making a "combined" application for the subclass 309/100 partner visa from outside of Australia.

There is also another kind of visa for prospective spouses called the subclass 300 prospective marriage visa. This is strictly an offshore visa application.

These visas mentioned above are not means-tested (no income requirement) and there are no English requirements. Some limitations many apply to you if you are not on a substantive Australian visa (i.e. you're not on a bridging visa), have had a previous visa refusal, have long-term health issues or a criminal history. You may be eligible for full-time work rights and Medicare after you have submitted an application.

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Proving a "genuine and continuing" relationship

One of the central ideas that the Department of Home Affairs, relevant tribunal and courts are concerned is whether the relationship is "genuine and continuing". Amongst other things, the authorities want to know if the both of you are "committed to a shared life to the exclusion of all others", and live together or do not live apart on a permanent basis.

"My relationship is obviously genuine and I have got nothing to hide!" is something we hear a lot of and completely empathise with. However having a genuine relationship is completely different to having the Department of Home Affairs recognising on the face of your evidence that you satisfy the legislative requirements for the grant of a partner visa.

So how can you prove to the authorities that your relationship is genuine in the eyes of Australian migration law? Is it enough to have photos, a joint tenancy agreement, a joint bank account and a marriage certificate? If you don't have any of the above, does that mean you will need to worry about your partner visa application? What if you don't have a joint lease, or if you are living with a partner/spouse's parents?

There is no straightforward answer to these questions. The reason for that is because every relationship is unique, with its own unique mix of evidence. Some couples may have of social evidence such as photos, whereas others may hardly have any photos at all. We don't ever come across a relationship that is 100% the same as the other.

The important thing to consider is having the right mix of evidence addressing all the different criteria that form a "genuine and continuing relationship", and describing or showing your genuine relationship in a way that addresses as many of the relevant legislative criteria as possible.

There are four aspects of your relationship that fall under the scrutiny of the authorities, as explained below.

(1) Financial aspects

The Department is interested in how the two of you manage your finances and to what extent you share finances or settle financial affairs. Significant purchases made together and money transfers to support one partner can be indicative of a couple relationship.

A common avenue for most is creating joint bank account which is used for managing daily expenses. This is helpful, but should not be the only thing you have the authorities refer to when looking at your financial aspects.

Proving that your finances are intertwined such as through creating a legally binding financial agreement may also be a helpful way to show this.

However, this does not mean that couples who keep their finances completely separate while living together cannot satisfy this requirement. It does mean that your application may be flagged as one that has a higher risk of refusal. If you do not live together yet or have had prolonged periods of living apart, it can also mean that your finances are less intertwined. If these apply to you, it is best that you seek advice from a registered migration agent or lawyer on how best to strengthen your evidence based on your individual circumstances.

If you're both living in the same country most of the time, showing the authorities through evidence that you are not simply housemates sharing expenses is key. If one person earns significantly more than the other and they split the household expenses equally, the authorities will have a higher tendency to interpret this to mean that the two people in question are housemates than partners.

(2) Social aspects

This is something that can be easily shown if you're a big user of social media (Facebook, Instagram, WeChat, etc.). Taking screenshots and saving them on a regular basis will add more to the evidence pile.

If the both of you are not active on social media, make a scrapbook or journal recording the different things that the two of you have done together. Take photos during dinners, meetings with friends/family, joint attendance of events, etc.

Whilst the authorities do look out for other types of social evidence (such as joint travel) other than photos, captioned photos are usually the most telling and straightforward. You may also want to take note of the dates, locations and people (other than yourselves) in the photos.

(3) Household aspects

The Department is interested in how you and your partner split household duties, and how day-to-day life at home looks like for the both of you as a couple. It will be helpful for you to share how you and your partner manage the household, and if anyone in particular is responsible for more duties than the other.

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(4) Commitment to each other and our future

It is important to show in your visa application that the both of you have long-term plans involving each other, be it marriage, children, financial commitments, or anything relevant to your specific circumstances. Putting together a will or listing your significant other as a beneficiary under your superannuation is also one of the common examples showing that you would like to have your partner looked after for the long term.

Couples who have spent prolonged periods temporarily living apart from each other (due to work obligations or visa constraints) may struggle particularly with proving joint finances and joint household. If this applies to you, you may want to consider seeking professional advice from a registered migration agent on whether you are in a position to lodge a partner visa application and how you can overcome the shortcomings in your evidence.

Period of temporarily living apart

For many offshore (and some onshore) applicants, the Australian partner and the visa applicant may have to endure significant periods living apart from each other.

If this applies to you, you and your partner must present evidence to show that your relationship has continued despite the temporarily period(s) of separation. Genuineness of your relationship may be questioned if the authorities are not satisfied that your relationship has continued to satisfy the legislative requirements while the both of you were physically apart.

Proving that these periods of living apart are temporary is key. For some, it may mean showing that they have continued keeping in contact every other day, showing evidence of how they have kept in contact and the contents of their conversations. For others who do not have the habit of keeping in touch while temporarily apart or have evidence proving this, it may pose as a roadblock to convincing the authorities that your relationship has continued despite the two of you living apart.

At the end of the day, every couple has their unique story to tell. Whilst the legislative criteria are set in stone, they do not and cannot define the circumstances of every kind of relationship. How your story fits in the legislative criteria will differ from couple to couple, and the onus is on you as the applicant to show to the Department that you do satisfy these criteria.

Rainer Maria Rilke, a Bohemian-Austrian poet, once said,"For one human being to love another: that is perhaps the most difficult of all our tasks, the ultimate, the last test and proof, the work for which all other work is but preparation."

When considering the complexities of migrating to a foreign country and navigating the immigration process, it's important to remember that these challenges, as daunting as they may seem, are small in comparison to the profound and transformative power of love. While bureaucracy and paperwork may test your patience, they are mere hurdles when weighed against the grand task of building a life with someone you love. Love has the power to make even the most arduous of journeys worth every step, reminding us that the true test lies not in the obstacles themselves, but in our commitment to overcome them together.

Need help with deciding on which visa is more suited to your circumstances? Have some burning questions about the 820, 300 visa or 309 visa that are still unanswered? The content on this page does not constitute legal or immigration advice. Australian immigration doesn't have to be complex and we can help with your unique circumstances. To seek legal advice or information that is specific to your situation, please contact us.