Understanding Cohabitation Requirements for Australian Partner Visas
One of the most common questions Huy encounters when processing marriage visas in Australia is whether continuous cohabitation is a mandatory requirement. This blog post will provide a clear explanation to alleviate any worries or concerns couples may have about periods of living apart.
According to the definition of "de facto partner" in section 5CB of the Migration Act 1958, couples who do not live together at the same address can still meet the requirements for visas 820/801 and 309/100.
However, if the element of living together is missing, the Case Officer will require higher-level evidence to prove that the relationship is genuine and ongoing.
In cases where the couple does not live together, the Case Officer will assess whether this separation is temporary. For reasons such as work, family, health, or other life circumstances, couples may need to live apart for a period. This is perfectly normal and can be reasonably explained. In some cases, due to Asian cultural factors, some couples may not be allowed by their families to live together before officially getting married. This reason is entirely acceptable, though it will require substantial evidence and careful presentation when preparing the application.
There have been many cases where couples have proven that living apart was temporary. These couples can provide evidence of regular communication such as facetime images, messages, calls, and other long-term commitments in different aspects. A detailed account for each period of living apart will be considered a reasonable solution to ensure that the couple meets the de facto definition.
Case Law Example: SZOXP v Minister for Immigration and Border Protection (2015)
In the case of SZOXP v Minister for Immigration and Border Protection (2015), the Federal Court concluded that couples who have never lived together before can still meet the definition of a de facto relationship, provided they are not living separately and apart on a permanent basis.
The Court determined that the meaning of section 5CB of the Migration Act (1958) does not imply that a couple must have lived together to meet the requirement of "do not live separately and apart on a permanent basis." However, the Court requires substantial evidence to prove the de facto relationship, which can be more challenging compared to continuously living together during the relationship.
In conclusion, living together when applying for a partner visa in Australia is an important factor to demonstrate the couple's commitment, but it is not an absolute requirement. Depending on the circumstances and explanation, couples can still meet the visa requirements if they prepare sufficient evidence and provide reasonable explanations.
This explanation also applies to married couples (Spouse) who have lived apart for some time during the visa application process.
Partner visas are among the most complex types of visas with many arising situations. If you have any questions about partner visas, feel free to contact Huy.
I am Huy, a registered migration agent in Australia (MARN: 2318079), specializing in family, skilled, and student visas for permanent residency.
Goodbye and see you soon. ^^
03/08/2024
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