Does a De Facto Relationship Require Previous Co-Habitation?

Is it possible to be granted a Partner Visa to Australia if you and your partner have not lived together before?

The short answer is yes. However, having lived together previously is still viewed as strong evidence of a de facto relationship. You must also demonstrate that you and your partner are in a committed and exclusive relationship that is genuine and ongoing, so you will need a strong justification for not having lived together previously. One such justification may be a shared religious view

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. 

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 Court gave five reasons for this decision.

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.

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.

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.

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.

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. 

SZOXP’s persistence with this case also shows the determination that is at times necessary in the Australian immigration process and the necessity of having skilled immigration lawyers on your side. It also shows the viability of Partner Visas for those who are not married or living together, as an immigration pathway.If you are facing Australian immigration law issues like SZOXP, get in touch with our immigration law team by booking your consultation session without delay.


+ posts

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).