Published: June 2022 | Last reviewed and updated: June 2026
Is it possible to be granted a Partner Visa to Australia if you and your partner have not lived together before?
A common question among de facto partner visa applicants is whether living together is a legal requirement for an Australian Partner visa. The short answer is no — but the full picture is more nuanced.
Under the Migration Act 1958, a de facto relationship is defined in section 5CB as a relationship where two people are not married to each other, are not related by family, and have a genuine and continuing relationship as a couple. The section requires that the couple either live together or do not live separately and apart on a permanent basis — these are alternative conditions, not cumulative ones.
This means that a couple who does not live together can still qualify as de facto partners for partner visa purposes, provided they meet the other criteria of a genuine, committed, exclusive relationship. What this looks like in practice, and how far you can take this argument, was settled by the Full Federal Court of Australia in the landmark case of SZOXP v Minister for Immigration and Border Protection.
For advice on whether your de facto relationship qualifies for a Partner visa, book a consultation with Augustine and Co. See also our partner visas service page for an overview of all partner visa options.
The SZOXP Case: Background
The matter of whether you can get a Partner Visa to Australia without having previously lived together was answered with a resounding yes by the Federal Court of Appeal in the landmark case of ‘SZOXP’. In this case, SZOXP had applied for a Partner Visa on 24 October 2012 believing that he was eligible as a de facto partnerof an Australian citizen despite not having previously co-habited.
SZOXP’s partner, Ms Yang, was an Australian citizen. The couple had been in a committed and exclusive relationship since December 2011. This relationship was also genuine and ongoing. However, they did not live together.
There were genuine reasons for not living together. SZOXP and Ms Yang were both devout Buddhists who had chosen to follow specific teachings. As part of these teachings, SZOXP and Ms Yang had interpreted the Third Precept of Buddhism to mean that they should not cohabit or have sexual relations before marriage. Not living together in no way impacted their commitment to a shared life together at the exclusion of all others or the genuine and continuing nature of their relationship.
Nevertheless, it raised doubts on whether a primary partner visa legislative criteria requiring that a couple ‘do not live separately and apart on a permanent basis’ was satisfied. If Ms Yang and SZOXP were found to live separately and apart on a permanent basis, then SZOXP’s application for a Partner Visa would be rejected as he would not meet the requirements in the Migration Act as being classified as a de facto partner.
Those determining their application had differing views as to whether living together was necessary for being a de facto partner and whether not living together would be fatal to their Partner Visa application. In the first instance, the delegate of the Minister refused the application. Subsequently, the AAT set aside this decision, disagreeing with the delegate of the Minister. Upon the Minister’s judicial review application to the Federal Circuit Court, the Court found that the AAT had made a jurisdictional error in approving the application. Nevertheless, SZOXP persisted and appealed to the full Federal Court.
What the Court Decided
The Federal Court held that there is no requirement that a couple live together or have previously lived together to be in a de facto relationship. Therefore, SZOXP was eligible for a Partner Visa despite not having ever lived together with Ms Yang.
The Five Reasons the Court Gave
The Court gave five reasons for this decision.
Reason 1: The Text of Section 5CB(2)
The first was that nothing in the text of section 5CB (2) of the Migration Act, which defines de facto relationship, explicitly or impliedly creates a requirement of living together. Rather, the Court interpreted the phrase ‘do not live separately and apart on a permanent basis’ as providing an alternative option to living together. This is due to the ‘or’ in s 5CB(2)(c), which is worded ‘(i) live together; or (ii) do not live separately and apart on a permanent basis.
Reason 2: Marriage Does Not Require Cohabitation Either
The second reason was that people can be in a marriage-like relationship without having previously lived together. Indeed, the definition for marriage in section 5F of the Migration Act does not itself include any requirement of having previously lived together. Rather, it is worded in much the same way as section 5CB.
Reason 3: No Absurdity Created
Thirdly, no absurdity was created by interpreting the legislation in a manner that allows de-facto partners that have not previously lived together, into Australia. As there is the additional requirement of a mutual commitment to a shared life together at the exclusion of all others, floodgates that would allow people intending to simply live together as friends or flatmates on Partner Visas are not opened by this interpretation. Thus, the integrity of Australia’s immigration laws would not be eroded by having couples allowed to enter despite not having lived together.
Reason 4: Avoiding Unnecessary Ambiguity
The fourth reason given by the Court was that the Minister’s proposed alternative interpretation would create unnecessary ambiguity. A requirement of previous co-habitation as proposed by the Minister would have created subsequent issues as to whether a commitment to a shared life together needed to exist during prior co-habitation and how long a prior period of co-habitation would be required. Therefore, previous co-habitation should not be required for Partner Visas.
Reason 5: Legislative History
The fifth and final reason of the Court was that the legislative history of the provision meant there was no implication that to not ‘live separately and apart’, de facto partners had to live together. This was the reason the Court elaborated on the most in their judgement.
They began by examining how a requirement of living together for 6 months was introduced in 1991, having not existed in the 1989 regulations which governed immediately prior. However, this 6-month co-habitation requirement was revoked in the 1994 regulations as part of substantial legislative changes and replaced by the present requirement that de facto partners ‘live together or do not live separately and apart on a permanent basis.’ This history of changes was interpreted to be a positive move against a requirement of having previously lived together. Nevertheless, it was acknowledged that evidence of de facto partners having previously lived together would remain relevant for Partner Visas when determining whether a relationship is genuine and ongoing.
Further, the Court found that the existence of the prospective marriage visa did not mean that section 5CB excluded de facto couples who had become engaged to marry. This was because the prospective marriage visa had different requirements to the partner visa, including that the applicant be overseas at the time of the grant of the visa.
The Court then looked at the prolonged history regarding the phrase ‘not living separately and apart on a permanent basis’ in law. Here, the Court referenced 16th and 17th century lawyers’ knowledge of Roman Law, and how this knowledge led to the phrase’s first usage in mid-16th century separation agreements as part of ecclesiastical law. Through this analysis of the origins of the phrase, it was found that the phrase was related primarily to an intention to dissolve a relationship by no longer living together.
This interpretation of the phrase was further supported in the Australian context by the High Court’s judgement in Main, where it was found to be ‘commonly used to indicate that the conjugal relation no longer exists’. This was further supported by the Western Australian Supreme Court in Crabtree, where in that case, it was held that people could live ‘separately and apart’ in the same house, an interpretation of the phrase subsequently enshrined in statute via the Family Law Act 1975.
From this historical context, the Court was informed that the phrase was premised upon a mental intention of the parties to live separately as well as physical separation. For the purposes of Partner Visas, it was about whether the de facto couple would permanently live as separate households in both a physical and mental sense. Thus, it was held that there could not possibly have been an intent in the Migration Act that couples needed to have physically lived together previously to meet the requirement of being in a de facto relationship when applying for their Partner Visa.
The precedent from this decision is that there is no requirement of having lived together before to be eligible for a Partner Visa, so long as there is a justifiable reason for not doing so that does not impact upon the commitment to the relationship. Further, religious reasons are clearly established as a justification for having not lived together that is still consistent with the intention for a shared life together.
What This Means for Your Partner Visa Application
The SZOXP decision confirms the legal position, but it does not make non-cohabiting applications straightforward. The Department of Home Affairs will still scrutinise non-cohabiting de facto applications closely. Here is what you need to demonstrate:
You must have a justifiable reason for not cohabiting. Accepted justifications include:
Religious or cultural beliefs that prohibit cohabitation before marriage (as in SZOXP)
Long-distance relationship where both parties live in different cities or countries
Family or financial obligations that make a shared household impractical
Care responsibilities for a dependent parent or family member
You still need to prove the relationship is genuine and ongoing. The four categories of evidence — financial, household, social, and commitment — remain the framework the Department uses. For non-cohabiting couples, the social and commitment categories carry greater weight because household evidence will be limited.
Key evidence for non-cohabiting de facto couples:
Communication logs showing regular, ongoing contact (messages, emails, calls)
Flight records, hotel bookings, and travel evidence showing time spent together
Evidence of meeting each other’s families and friends
Photos together at events, holidays, and family occasions
Statutory declarations from people who know the couple as a couple
Evidence of mutual knowledge of each other’s personal circumstances (health, family, finances)
Evidence of future plans to live together (joint lease signed, property searched, wedding planned)
The 12-month de facto requirement: For the purposes of the Partner visa (Subclass 820/801 and 309/100), the Department of Home Affairs generally requires that the de facto relationship existed for at least 12 months prior to lodgement. This 12-month requirement applies regardless of whether the couple has cohabited. The period starts from when the couple began their de facto relationship — for non-cohabiting couples, this will be the date they began their committed, exclusive relationship.
Exceptions to the 12-month requirement include:
The couple has registered their de facto relationship in an Australian state or territory
There are compelling circumstances affecting the interests of an Australian citizen child of the relationship
The couple lodges a Prospective Marriage visa (Subclass 300) instead
See our related article on the Prospective Marriage Visa (Subclass 300) for couples who prefer to formalise their relationship through marriage before applying for a Partner visa.
Frequently Asked Questions
Q. Can I apply for an Australian Partner visa if my partner and I have never lived together?
Yes. The Full Federal Court in SZOXP v Minister for Immigration and Border Protection confirmed that there is no requirement in the Migration Act 1958 for de facto partners to have previously lived together. Section 5CB(2)(c) of the Act provides that de facto partners must either live together OR not live separately and apart on a permanent basis — these are alternative conditions. You must, however, have a justifiable reason for not cohabiting and strong evidence that the relationship is genuine, committed, and exclusive.
Q. What reasons are accepted for not living together in a de facto partner visa application?
Accepted justifications include sincere religious or cultural beliefs that prohibit cohabitation before marriage (the basis of the SZOXP decision), long-distance relationships, family care obligations, and financial or practical constraints that prevent a shared household. The reason must be genuine and must not cast doubt on the couple’s commitment to a shared life together.
Q. Do de facto partners still need to meet the 12-month relationship requirement without cohabitation?
Yes. The Department of Home Affairs generally requires that the de facto relationship existed for at least 12 months before lodgement. This requirement is separate from the cohabitation question — it applies regardless of whether the couple has lived together. The 12-month period begins from the start of the de facto relationship.
Q. What is the difference between living separately and not being de facto partners?
In SZOXP, the Court drew a clear distinction between couples who live apart for practical or principled reasons while remaining committed to each other, and couples who have permanently separated. The phrase “do not live separately and apart on a permanent basis” refers to a mental intention to dissolve the relationship combined with physical separation. A couple who chooses not to cohabit for religious reasons is not living “separately and apart” in the legal sense.
Q. What evidence do I need if my de facto partner and I do not live together?
You will need strong evidence across the social and commitment categories: communication records, travel history together, photos, statutory declarations from people who know you as a couple, evidence of mutual knowledge of each other’s personal circumstances, and evidence of plans to live together permanently. The household and financial categories will be more limited for non-cohabiting couples, so the other categories must be particularly well documented.
Q. Can an engaged couple apply for a Partner visa without having lived together?
Yes. The SZOXP decision confirmed that section 5CB does not exclude de facto couples who are also engaged. The Court noted that the Prospective Marriage Visa (Subclass 300) has different requirements and its existence does not mean that engaged de facto couples cannot use the Partner visa pathway. However, for engaged couples who have not yet married, the Prospective Marriage Visa (Subclass 300) may also be worth considering.
Q. What is a registered de facto relationship and does it help with a partner visa?
In several Australian states and territories, de facto couples can register their relationship with the Registry of Births Deaths and Marriages. A registered relationship provides formal evidence of the de facto relationship and may exempt the couple from the 12-month de facto requirement. It does not, however, change the evidence requirements for demonstrating a genuine and ongoing relationship.
Conclusion
The SZOXP decision remains the authoritative judicial statement on cohabitation and de facto partner visas in Australia. It confirms that the Migration Act 1958 does not require de facto couples to have previously lived together. What it does require is a genuine, committed, exclusive relationship — and compelling evidence to support it.
For non-cohabiting couples, this means the quality of your evidence file is especially important. A well-constructed application that clearly explains the reason for not cohabiting and provides strong social and commitment evidence can succeed. A poorly documented application, even where the relationship is genuine, carries a high risk of refusal.
Augustine and Co. advises de facto couples at all stages of the partner visa process, including non-cohabiting couples and long-distance relationship applicants. Book a consultation with our partner visa team to discuss your specific circumstances.
You may also find these resources useful:
Author
Calvin Augustine is the founding solicitor of Augustine & Co. Immigration Lawyers. He graduated with Honors from the University of London law school, before being admitted to practice in Malaysia and Australia (admitted in SA, appears in all Victorian Courts and Tribunals, at trial and appellate levels).
