Relationships are not continuous cohabitation. People take fly-in-fly-out rosters, go home to care for a dying parent, get stuck offshore by a visa refusal, do a two-year posting in Singapore. Every one of those is normal, and every one of them creates a gap in a partner visa evidence file that a delegate will notice.
The gap is not fatal. The unexplained gap is.
What the legislation actually requires
Both section 5F (spouse) and section 5CB (de facto partner) of the Migration Act 1958 require that the parties “live together, or do not live separately and apart on a permanent basis.”
That is a deliberately two-limbed test, and the second limb does the work here. The question is not whether you were physically together. It is whether the separation was permanent in character. A twelve-month posting with a return date, a maintained shared lease, continued joint finances and daily contact is not living separately and apart on a permanent basis. A period in which the parties went their separate ways, stopped supporting each other financially, and re-formed the relationship months later is a different proposition entirely, and needs to be characterised honestly.
The distinction matters enormously for de facto applicants, because if a period of separation broke the relationship, the 12-month clock under regulation 2.03A may have restarted.
The three questions to answer for every gap
For each period of separation, your relationship statements should answer three things, and your evidence should corroborate each.
1. Why did it happen? Employment, study, caring responsibilities, immigration status, illness, a family emergency. Give the reason and document it — an employment contract, an enrolment letter, a medical certificate, a visa refusal notice. A reason that is external and verifiable is far stronger than a reason that exists only in the statement.
2. Was the shared life maintained?
This is the heart of it.
- Financial: did transfers continue? Did joint liabilities remain on foot? Did one partner keep meeting the other’s expenses? Was the lease or mortgage maintained?
- Household: was a shared residence retained? Did belongings stay? Was there an intention to return to the same home?
- Social: did you continue to present as a couple? Did you attend each other’s family events? Do friends’ statements cover this period?
- Commitment: what does the contemporaneous communication show? Were plans being made for reunion?
3. What was the intention? Evidence of a return date is powerful. Return flight bookings, an end-dated contract, a rental agreement in the destination country that expires, a school enrolment for a child that runs to a fixed term.
Practical evidence for separation periods
Communication records are the obvious source, but they are frequently mishandled. A thousand pages of raw message export is not helpful and delegates will not read it. Extract a representative sample across the period, ensure timestamps are visible, and provide a short index explaining what the sample shows. Ten well-selected pages with a one-page index is more persuasive than a data dump.
Other material that works well:
- Travel records showing visits in both directions
- Money transfer records — remittances, international transfers, shared subscription payments
- Continued joint policies: health insurance, contents insurance, a vehicle registration
- Video call logs, where available, showing frequency rather than content
- Statements from friends or family in both locations who observed the relationship continuing
The case where the gap is at the start
A particularly common pattern: a couple met overseas, were together for eight months, then separated for a year while one returned home, then reunited. The applicant counts the whole period. The delegate does not.
Where the separation was long and the shared life was not maintained through it, the safer approach is to treat the relationship as having recommenced at reunion, evidence the 12 months from that date, and address the earlier period as context establishing the depth and history of the relationship. Advancing a duration claim that the evidence cannot sustain damages credibility on everything else in the application.
Frequently asked questions
Can we get a partner visa if we have never lived together?
It is difficult but not automatically excluded, particularly for married applicants. Section 5F and section 5CB permit parties not to be living together provided they are not living separately and apart on a permanent basis. De facto applicants face the additional hurdle of regulation 2.03A. Get advice before lodging.
Does a period of separation restart the 12-month de facto clock?
It can, if the separation was permanent in character and the relationship ceased. If the shared life was maintained throughout, generally not.
Should we disclose a period where we broke up?
Yes. Section 104 of the Migration Act requires notification of changes in circumstances after lodgement, and non-disclosure discovered later is treated far more seriously than a disclosed and explained separation.
Arnela Tolic is the Principal Solicitor of Tolic Lawyers, a Parramatta-based migration and employment law firm, and the NSW Representative for Migration Alliance. Tolic Lawyers advises on onshore subclass 820/801 and offshore subclass 309/100 partner visa applications, including complex de facto and Schedule 3 matters.
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Disclaimer: This article is general information current as at 28 August 2026. It is not legal advice and does not take into account your circumstances. Verify all fees and processing times with the Department of Home Affairs before acting.
