A recent Full Federal Court case has clarified whether living together is required as a pre-requisite to be being a de facto relationship. The answer is that living together is not necessary.In SZOXP v Minister for Immigration and Border Protection

couple [2015] FCAFC 69 the court looked at the meaning of Migration Regulation 5CB(2)(c) which provides a definition of de facto which includes:

(i)        live together; or

(ii)       do not live separately and apart on a permanent basis; and

The case is quite interesting to read because it sets out a lot of legislative and other history about the requirements of a relationship. The conclusion reached was:

  1. The appellant’s construction of s 5CB of the Migration Act, which does not require that the parties physically reside in the same premises prior to the application, is supported by the plain meaning of the section. It is consistent with other provisions of the Migration Act, notably the definition of spouse in s 5F. It avoids the ambiguities and the difficulties associated with an implication of the additional words into s 5CB(2)(c)(ii) sought by the Minister. It is supported by the section’s legislative history. And it is supported by the well hallowed meaning of the phrase “living separately and apart” as that phrase had been established at the time the section and its predecessors were enacted.

Creative commons acknowledgement for the photograph.

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