High Court. Can a couple live "separately and apart" even when they reside in the same home? Is it possible for a couple who maintain "separate residences" to not be living separately and apart, so long as they live as a "single household"?
Although this is not a migration case, it discusses principles that overlap with concepts arising from the Migration Act 1958 (Cth), such as the existence of a de facto relationship.
Some of the questions to the High Court (HCA) were as follows:
Question 1: In Crabtree, the Full Court of the Supreme Court of New South Wales concluded that a husband and wife could live "separately and apart" even when they both resided in the same home. Was Crabtree correctly decided?
Question 2: In SZOXP, the Full Court of the Federal Court held in the context of an administrative decision on whether a couple was in a de facto relationship that it was possible for a husband and wife who maintained "separate residences" to not be living separately and apart, so long as they lived as a "single household"? Was SZOXP correctly decided?
Question 3: Can it be said that "involuntary and enduring separation – due to, for example, illness – will not always justify a conclusion that a relationship has ended"?
The HCA answered those questions as follows:
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