Does Time Apart Break the 12-Month De Facto Requirement?

Does a temporary separation stop the 12-month de facto period?

A temporary separation does not stop the 12-month de facto period, because the test in section 5CB of the Migration Act is whether the couple lives together or does not live separately and apart on a permanent basis. Periods apart for work, study, family duties or visa reasons are consistent with a continuing de facto relationship when the couple remains committed to each other. Our article on the Subclass 820 de facto 12 months requirement explains how the period is counted.

What is the difference between time apart and a break-up?

The difference between time apart and a break-up is whether the relationship itself continued. When a couple separates and ends the relationship, the de facto relationship ends, and if they later reconcile the Department may treat the 12 months as starting again from the reconciliation. When the couple is apart but still in the relationship, the de facto relationship continues. Our article on partner visa repeated separations explains how past break-ups are handled.

How long can we be apart and still meet the requirement?

No fixed period of time apart breaks the 12-month de facto requirement, because the Department looks at the reasons for the separation and the evidence of commitment rather than counting days. A long period apart in a short relationship will draw more questions than the same period in a long relationship. The more time a couple spent apart, the more important it is to show regular contact, visits and shared plans. Our article on a partner visa long-distance relationship shows the evidence that helps.

What evidence shows our relationship continued while apart?

The evidence that shows a relationship continued while the couple was apart includes call and message records, visits and travel bookings, money sent between the partners, joint plans such as a lease for when they reunite, and statements from family and friends. The relationship statement should explain each separation, its reason and how the couple stayed connected. Our article on partner visa intermittent cohabitation covers couples who move between living together and living apart.

Can the Department refuse a de facto visa because of time apart?

The Department can refuse a de facto visa if it is not satisfied that the couple was in a de facto relationship for the full 12 months, and unexplained time apart is a common reason for that finding. A refusal of this kind may be reviewable at the Administrative Review Tribunal within a strict time limit. Our page on partner visa refusals explains how the firm acts on these decisions.

How does My Migration Lawyers deal with time apart in a de facto application?

My Migration Lawyers deals with time apart by working through each separation with the couple before lodgement, deciding whether it was a temporary absence or a true break in the relationship, and then setting out the dates and reasons clearly in the application. Where the 12 months may not be met, the firm advises on alternatives, such as registration or waiting before lodging. Couples can speak with our partner visa lawyers before they lodge.