On 4 December 2008, the Same-Sex Relationship (Equal
Treatment in Commonwealth Laws - Superannuation) Act was
The Act amends legislation relating to superannuation so that
same-sex couples can fall within the definition of spouse and
changes the meaning of "child".
The definition of spouse has been amended to include:
another person with whom the person is in a relationship that
is registered under a state or territory law;
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.
This makes it easier for same-sex spouses to qualify as
dependents for the purposes of payment of death benefits (including
as a pension), and for same-sex spouses to challenge a death
benefit payment decision in the Superannuation Complaints Tribunal
(for non-self managed super funds). For example, there is no
specified minimum time period for a couple to become
Previously, same-sex couples must have been in an
interdependency relationship to qualify as a dependant for
The definition of child has also been widened to include "a
child of the person's spouse". This will expand the class
of potential beneficiaries and claimants for superannuation. For
example, if two people are "spouses" and one dies, the
children and step-children of the survivor are able to claim the
deceased member's superannuation, even if there has been little
or no relationship. Also, if your "spouse" dies during
the relationship, that person's children and step-children can
remain potential claimants even many years after the death of your
Clients with these issues should review their estate planning,
particularly how their superannuation is dealt with and whether a
binding death benefit nomination is appropriate.
The amendments apply from the 2008/2009 income year.
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.
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