De-Facto Relationships – living together

This is probably one of the most asked questions I get; do I have to have been living with my partner for 12 months before I can prove our de-facto relationship for the purposes of a partner visa?

Answer: no. You don’t have to prove you have been living together for 12 months, or even at all and it’s a common misconception that you do.

You are eligible to apply for a partner visa and be granted one, without having lived together at all.
In the case of SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69, the full Federal court considered the meaning of the legislative requirement that a couple “do not live separately and apart on a permanent basis”. In doing so, it ruled that there is no requirement that a couple either currently live together or have previously lived together, to be in an eligible de-facto relationship. The Court gave five reasons for the decision, as follows.

1. Section 5CB(2)(c) of the Migration Act states that a couple: (i) live together; or (ii) do not live separately and apart on a permanent basis. Nothing in section 5CB(2) of the Migration Act, explicitly or impliedly creates a requirement that the couple live together or have previously. On the contrary, the Court interpreted the phrase at (ii) – ‘do not live separately and apart on a permanent basis’ as creating an alternative to (i) – living together. This is due to the ‘or’ in s5CB(2)(c).
   
2. People can be in a marriage-like/exclusive/committed and even long-term relationship without having previously living together.
   
3. No absurdity would be created by interpreting the legislation to mean that the definition of de-facto partners can include those who have not previously lived together. Because of the additional requirement of a mutual commitment to a shared life together at the exclusion of all others, there was little potential that people intending to simply live together as flat mates on Partner Visas would abuse it. Thus, the integrity of Australia’s immigration laws would not be undermined.
   
4. A requirement of previous co-habitation (as proposed by the Minister) would have created issues as to interpretation, for example, whether a commitment to a shared life together needed to exist during prior co-habitation or how long a period of co-habitation would be required.
   
5. The legislative history of the provision ‘living separately and apart’ meant there was no implication that to not ‘live separately and apart’, de facto partners had to live together. For the purposes of Partner Visas, the crux of the analysis was whether a de-facto couple would permanently live as separate ‘households’ in both a physical and mental sense.

The decision sets the precedent that there is no requirement that a de-facto couple have lived together before being able to apply for or be granted a Partner Visa.
It is usually advisable to be able to provide a justifiable reason for doing so and be able to explain the greater context of the living arrangements. It should also be noted that those reasons/context do not in themselves, raise red flags or undermine any other aspect of the application.

Couples should also be able to talk about their intention to live together in the future.

To speak to Wren Legal, please contact me at [email protected]

The contents of this article are for reference purposes only. The contents do not constitute legal advice and should not be relied upon as such. Specific legal advice about your personal circumstances should always be sought separately before taking any action based on this publication or otherwise.