Australia: Superannuation And Same-Sex Relationships

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 (Cth) No 134 of 2008 received Royal Assent on 4 December 2008.

The Act is the Commonwealth Government's response to the perceived discrimination against same-sex partners and the children of same-sex couples in the laws which govern superannuation funds. The Act has changed the rules in those laws that prescribe the availability and tax treatment of superannuation death benefits to same-sex partners and the children of same-sex couples.

Of particular interest are the amendments to the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act), the Retirement Savings Accounts Act 1997 (Cth) (the RSA Act) and the Income Tax (Transitional Provisions) Act 1997 (Cth) (the Tax Act). These amendments generally have retrospective effect, from 1 July 2008.

There are also amendments to a number of other Acts, such as the Acts Interpretation Act 1901 (Cth).

SIS Act amendments

The Act has amended the SIS Act in the following key respects:

  • the definition of "spouse" in subsection 10(1) has been expanded as follows:

"spouse of a person includes:
  1. another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and
  2. another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple."

The new concept of living with a person on a genuine domestic basis "in a relationship as a couple" (in paragraph (b)) has replaced the previous, narrower concept of living with a person on a genuine domestic basis "as the husband or wife of the person". This expanded definition of "spouse" means that partners in same-sex relationships (within the definition) are now included as part of the object of the operation of a superannuation fund.

Partners in registered relationships under prescribed State and Territory laws (in paragraph (a)) also come within the definition;

  • the definition of "child" in subsection 10(1) has been expanded as follows:

"child, in relation to a person, includes:
  • an adopted child, a step-child or an ex-nuptial child of the person; and
  • a child of the person's spouse; and
  • someone who is a child of the person within the meaning of the Family Law Act 1975."

This expanded definition of "child" means that children of same-sex couples (within the definition) are now included as part of the object of the operation of a superannuation fund. The new definition also incorporates by reference the expanded definition of "child" in the Family Law Act 1975 (Cth) which includes, for example, a child born as a result of an artificial conception procedure, or a child who is a child of a person because of a State or Territory court order giving effect to a surrogacy agreement; and

  • the definitions of "relative" in subsections 65(6) (which relates to the scope of the prohibition against lending to fund members and their relatives) and 70E(4) (which relates to the scope of the "associate" concept) are deleted and replaced with a new definition of "relative" in subsection 10(1) in terms that are almost identical to those deleted definitions, as follows:

"relative of an individual means the following:
  1. a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the individual or of his or her spouse;
  2. a spouse of the individual or of any other individual referred to in paragraph (a)."

However, a new subsection 10(5) confirms that "relative" now has an expanded meaning, by clarifying when one person is a "relative" of another person, in the following terms:

"For the purposes of paragraph (a) of the definition of relative in subsection (1), if one individual is the child of another individual because of the definition of child in subsection (1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual."

In other words, although the actual definition of "relative" has hardly changed, "relative" is now an expanded concept as a consequence of the expanded definition of "child".

The expanded definitions of "spouse" and "child" affect the operation of other provisions in the SIS Regulations, such as the cashing of a member's benefits in relation to a child in regulation 6.21.
In summary, the Act has abolished the previous gender-based definition of "spouse" so that same sex couples are now treated in the same way as married couples and opposite-sex de facto couples. A superannuation fund trustee can now make death benefit payments to same-sex partners and the children of same-sex couples in the same way as such payments can be made to couples of different sexes and their children.

RSA Act amendments

The Act has made parallel amendments to the RSA Act in that the definitions of "spouse" and "child" are similarly expanded. This has had the effect of expanding the definition of "dependant" in section 20.

Tax Act amendments

The Act has also expanded the definitions of "spouse" and "child" in the Tax Act for the 2008-2009 income year, by incorporating by reference the new definitions of "spouse" and "child" in the SIS Act. This means that the trustee of a superannuation fund who pays a superannuation lump sum death benefit to a same-sex partner or a child of a same-sex couple can now claim a deduction where the fund refunds tax paid on contributions during the lifetime of the deceased member.

The Act has also amended the definition of "death benefit dependant" for the 2008-2009 income year in a similar way. This means that a same-sex partner or a child of a same-sex couple under the age of 18 is now entitled to the death benefit tax concessions without having to prove financial dependency or an interdependency relationship.

Superannuation splitting

In related reform, the Family Law Act 1975 (Cth) has been amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) to give de facto couples – both opposite-sex and same sex – access to the federal family law property settlement and spouse maintenance regime.

This amending Act received Royal Assent on 21 November 2008 and generally commenced on that date. Among other things, the amending Act has extended superannuation splitting arrangements under Part VIIIB of the Family Law Act to parties to a de facto relationship, and extended the CGT roll-over relief on the transfer of assets on marriage breakdown.

Action for superannuation trustees

Following these reforms, superannuation trustees will want to:

  • review the trust deed to see whether the definition of "dependant" is as broad as the definition in the SIS Act of "dependant", now that the definitions of "spouse" and "child" in the Act have been expanded. If it is not, the trustee may decide to amend the trust deed. Any definitions of "spouse" and "child" should also be reviewed;
  • review the Product Disclosure Statement and other documentation to see whether any updating is required. In particular, it may be necessary to update any statements made about the classes of persons to whom death benefits can be paid (eg in binding death benefit nomination forms and claim forms);
  • where the trust deed allows binding death benefit nominations – consider notifying members of the change to the law as a "significant event" for the purposes of section 1017B of the Corporations Act 2001 (Cth), especially as some members may have arranged their affairs on the basis of the previous law. Generally, such notification must be given "as soon as practicable after, but not more than 3 months after" the event: subsection 1017B(5);
  • make appropriate changes to the trustee's policies and procedures for the payment of death benefits and superannuation splitting; and
  • consider mentioning the reforms, and the trustee's response to them, in the trustee's next annual report.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.