Parliament has passed the Same-Sex Relationships (Equal
Treatment in Commonwealth Laws - Superannuation) Act 2008
(Act). The Act amends 14 different Acts in relation to the
Commonwealth civilian and military (defined benefits)
superannuation schemes, judicial and statutory legal officer
pension schemes and the Governor-General's pension scheme. The
Act has retrospective effect from 1 July 2008.
Proposed change to the definition of 'spouse'
The Act changes the definition of 'spouse' in the
Superannuation Industry (Supervision) Act 1993 (SIS Act)
by replacing the words 'as husband or wife of the person'
with 'in a relationship as a couple (whether the persons are
the same sex or different sexes)'. This proposal will mean that
'spouse' will include a person who is in a relationship as
a couple with another person irrespective of their gender.
Change to the definition of 'child'
The Act also proposes to repeal and replace the definition of
'child' by adopting the following:
'Child' in relation to a person includes:
An adopted child, a step-child and an ex-nuptial child of the
person; and a child of the previous spouse.
If, at any time, the person was in a relationship as a couple
with another person (whether the persons are the same sex/different
sexes) - a child who is the product of the person's
relationship with that other person.
Someone who is a child of the person within the meaning of the
Family Law Act 1975 (Cth). This in section 4(1) of the Family Law
Act means a 'child' as provided in Division I of Part
Same-Sex Relationships (Equal Treatment in
Commonwealth Laws - General Law Reform) Act 2008
The Same-Sex Relationships (Equal Treatment in Commonwealth
Laws - General Law Reform) Act 2008 (GLR Act) makes
corresponding amendments to the tax legislation to introduce the
Same Sex Spouse concept for superannuation tax treatment.
What do superannuation trustees need to do?
If you are a superannuation trustee you will need to consider
amendments to the superannuation fund trust deed, changes to your
procedures in relation to the payment of death benefits and
reviewing your disclosure documents and other communication to
The GLR Act will also affect the trustee's decision making
in relation to the payment of death benefits to financial
dependants of a new class of beneficiaries. While most
beneficiaries will already meet an existing SIS definition, it may
not always be the case. There are also the implications of the
retrospective nature of the GLR Act to consider.
You may also need to consult your administrator about new
procedures and changes to documentation processes that are in place
for death benefits and contribution splitting for the new
definition of spouse.
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because the firm entered into an exclusive alliance with DLA Piper,
one of the largest legal services organisations in the world. We
will retain our offices in every major commercial centre in
Australia and New Zealand, with no operational change to your
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This publication is intended as a first point of reference
and should not be relied on as a substitute for professional
advice. Specialist legal advice should always be sought in relation
to any particular circumstances and no liability will be accepted
for any losses incurred by those relying solely on this
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