Do You Need to Live Together to Get a Partner Visa?
July 7, 2016
De facto Relationships - Living Apart Together (LAT)
LAT couples claim to live apart, however, maintain a relationship with their significant other - can this arrangement meet the criteria of a de facto relationship? Recent immigration case law suggests that, in the right circumstances, it can.
What is a de facto relationship?
Under Migration legislation, a de facto relationship is established where a couple has a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, live together and do not live separately and apart on a permanent basis; and are not related by family. The de facto relationship must be established for 12 months prior to visa application. When assessing whether two people are in a de facto relationship, the Department of Immigration will also take the following into account:
- The financial aspects of the relationship;
- The nature of the household – i.e. living arrangements;
- The social aspects of the relationship; and,
- The nature of your commitment to each other.
Case 1
The applicant applied for a partner visa, claiming to be in a de facto relationship with an Australian Citizen. Previously, the applicant had been detained at Villawood Detention. A delegate refused to grant the partner visa as the couple did not satisfy the legislative requirements of a de facto relationship, the couple had not lived together prior to making their visa application.
The couple later married at Villawood Detention Centre, followed by a Buddhist wedding ceremony. The couple commenced living together after their marriage.
On review, the Migration Review Tribunal accepted that the couple followed Buddhism and as such, should not cohabit before marriage. The Tribunal ultimately found there was no requirement in the legislative definition that a couple must live together before a de facto relationship is found to exist.
The Department of Immigration and Border Protection sought judicial review of the Tribunal’s decision where the Federal Circuit Court found in the Department’s favour. The applicant commenced a further appeal to the Full Federal Court. The Full Federal Court upheld the Tribunal's decision finding that there is no legal requirement that a couple must have previously lived together in the definition of a “de facto relationship” or “do not live separately and apart on a permanent basis”. In the applicant's circumstances, the religious beliefs held prevented cohabitation before marriage.
Case 2
The Administrative Appeals Tribunal heard a similar matter, where an applicant applied for a partner visa, claiming to be in a de facto relationship with an Australian Citizen. The couple married six months after commencing their partner visa application. The Tribunal accepted the couple held strong Christian beliefs and did not live together prior to their marriage due to their religious beliefs. The Tribunal ultimately found the couple was in a genuine de facto relationship prior to their partner visa application. The matter was remitted to the Department of Immigration with a direction the couple were in a de facto relationship prior to lodgement of the visa application.
If you have any queries about a possible application for a partner visa, please feel free to contact your local Fragomen office.
