reg 1.09A - definition of "de facto relationship"
The four-factor test for whether two people are in a de facto relationship. Crucially, factor (d) explicitly contemplates partners who do not live together permanently, which is why a long-distance relationship with periods apart can still meet the legal test.
Primary source
The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets;
(ii) any joint liabilities;
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments;
(iv) whether one person in the relationship owes any legal obligation in respect of the other;
(v) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children;
(ii) the living arrangements of the persons;
(iii) any sharing of the responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other;
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship;
(iii) any basis on which the persons plan and undertake joint social activities;
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship;
(ii) the length of time during which the persons have lived together;
(iii) the degree of companionship and emotional support that the persons draw from each other;
(iv) whether the persons see the relationship as a long-term one." Migration Regulations 1994 (Cth) reg 1.09A(2) and (3)
The four factors mapped to the four pillars of evidence
The four reg 1.09A subregulations map directly to the four-pillar evidence framework the Department uses when assessing partner visas. This is not a coincidence: the four pillars are the operational expression of the legal test.
| reg 1.09A factor | Pillar | What it asks |
|---|---|---|
| (a) financial | Financial | Joint assets, joint liabilities, pooled resources, shared day-to-day expenses |
| (b) household | Household | Living arrangements, shared housework, joint care of children |
| (c) social | Social | Holding out to others, friends' opinions, joint social life |
| (d) commitment | Commitment | Duration, time lived together, emotional support, long-term view |
Critical reading: factor (d)(ii) does not require continuous cohabitation
Factor (d)(ii) refers to "the length of time during which the persons have lived together" - in the past tense, accumulated. It does not say "the relationship requires continuous cohabitation". This phrasing, combined with the Migration Act s 5CB(2) standard "not living separately and apart on a permanent basis", is what permits long-distance relationships to qualify.
My case verdict
All four factors evidentially supported. Modlean verdict:
relationshipSatisfied eduardoNatalieRelationship = true
(kernel-checked in ModleanSatAuPartnerVisa).
Related
- reg 2.03A - the 12-month duration gate
- Four-pillar evidence guide (coming)
- Cohabitation chronology (coming)