Applying for a Partner Visa when you don’t live together
A question that our immigration lawyers are frequently asked by individuals seeking advice about their eligibility for a Partner Visa is whether you can still apply for a Partner Visa if you and your sponsor are not living together.
So can you apply for a Partner Visa if you are not living with your sponsor? The short and simple answer is yes, it is possible. However, it is important to understand that such cases can present challenges, and that each application will be considered on its own individual merits.
In Australian immigration law, the requirement for a partner visa is based on the genuine and continuing nature of the relationship, as opposed to being strictly based on cohabitation, the latter being just a factor (albeit an important consideration) when determining the existence of a de facto or married relationship. This means that even if you and your sponsor are not living together, you may still qualify for a partner visa.
Legal Precedents: Cohabitation
A case that provides important insight and judicial authority on this issue is SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69, which was decided by the Federal Court of Australia on 11 June 2015. In this case, the applicant and his partner had not lived together before the lodgement of his Partner (Subclass 820/801) visa application due to their religious beliefs, and the applicant’s Partner (Subclass 820) visa application was later refused by the Department for reasons including that he was not in a de facto relationship with his sponsor at the time of application. Relevantly, the applicant’s Partner (Subclass 820/801) visa application was lodged on 24 October 2012 on the basis of his de facto relationship at the time of lodgement, and he subsequently married his sponsor on 26 November 2012.
Despite previous findings that the applicant and his sponsor had not had a sexual relationship or cohabitated before the lodgement of their Partner visa application on 24 October 2012, the Federal Court ruled that this did not in itself prevent them from qualifying as a de facto couple at the time of application.
In particular, the Federal Court made it clear that cohabitation is not a strict requirement, stating that there is no requirement that a couple have physically resided in the same premises prior to lodging a Partner visa application. Rather, the requirement is for them to be either (a) living together; or (b) not living separately and apart on a permanent basis, such that couples who did not live together prior to the lodgement of the Partner visa application, due to reasons such as cultural factors, may still be eligible for a Partner visa.
What Does This Mean for You?
Although the decision in SZOXP provides useful guidance that couples who are not living together are not precluded from applying for a Partner visa, it is imperative to note that every Partner visa application is unique and will ultimately be assessed on its own merits. Your case will be assessed based on its specific circumstances, and the fact that you and your sponsor are not living together may certainly create challenges when the Department of Home Affairs evaluates the four key aspects of your relationship:
Financial Aspects: The Department will look for evidence that you and your sponsor share financial responsibilities. This could include joint bank accounts, shared utility bills, or evidence of mutual financial support.
Nature of Your Household: Even if you do not live together, the Department will still assess the nature of your household arrangements. For example, do you visit each other frequently? Do you stay together regularly at one another’s homes? Such factors can demonstrate the strength and authenticity of your relationship.
Social Aspects: The Department will examine whether you and your sponsor present yourselves as a couple in social settings. This may include attending events together, sharing photographs, or being recognised by family and friends as being in a committed relationship.
Nature of Your Commitment: The Department will also consider evidence of your long-term commitment to one another. This can include plans for the future, such as marriage, children, or shared goals and aspirations.
This is especially where there is no plausible explanation or justification for your separate living arrangements and/or no clear evidence as to any arrangements you have made to live together in the future, which could lead the Department to find that you are not in a genuine and continuing de facto or married relationship.
The Risk of Refusal
It is essential to understand that if you are unable to convince the Department that, despite not living together, your de facto or married relationship remains genuine and ongoing, your Partner visa application could be refused. It is therefore important to carefully consider how you can address and explain the reasons for your separate living arrangements in detail.
For example, if your decision to live separately is due to cultural reasons or any other legitimate cause, you should provide a thorough explanation and supporting evidence for these arrangements. Failing to sufficiently clarify the reasons behind your living arrangements can lead the Department to question the authenticity of your relationship, which can increase the likelihood of your Partner visa application being refused.
Seek Legal Advice
Although not living together does not automatically disqualify you from applying for a partner visa, it can certainly complicate your Partner visa application and not only increase the risks of refusal in your Partner visa application, but also result in extended processing times and delays in the finalisation of your Partner visa application. This is because while living together in the same household is not strictly a legal requirement for the Partner visa, cohabitation is often regarded as an indicative factor as to whether a Partner visa applicant is a genuine and continuing de facto or married relationship with their sponsor.
It is therefore important to seek legal advice about your specific circumstances, so that you are apprised of the risks involved with lodging a Partner visa application when you do not live with your sponsor, and are aware of other information and documents you can provide to demonstrate that notwithstanding your separate living arrangements at the time of lodgement, you were and continue to be in a genuine and continuing relationship with your sponsor.
Our experienced immigration lawyers have successfully assisted many clients with complex partner visa applications, including cases where a couple is not presently living together. We can advocate on your behalf and make legal submissions to the Department to address not only the reasons for your living arrangements, but also assist you with demonstrating that you meet that all necessary legislative and regulatory criteria for the grant of a Partner visa.
If you are considering applying for a Partner visa and are unsure about whether you meet the requirements, or if you need assistance with the Partner visa process, our team of experienced immigration lawyers is here to guide you every step of the way. Should you wish to discuss your eligibility for a Partner visa, please email us at info@inclusivemigration.com.au, submit an enquiry through our contact form or send us a message on WhatsApp. We are here to support you through each step of the process and ensure that your Partner visa application has the best chances of success.
