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SOCIAL SECURITY ACT 1991 - SECT 4

Family relationships definitions--couples

             (1)  In this Act, unless the contrary intention appears:

"approved respite care" has the meaning given by subsection (9).

"armed services widow" means a woman who was the partner of:

                     (a)  a person who was a veteran for the purposes of any provisions of the Veterans' Entitlements Act; or

                     (b)  a person who was a member of the forces for the purposes of Part IV of that Act; or

                     (c)  a person who was a member of a peacekeeping force for the purposes of Part IV of that Act; or

                     (d)  a person who was a member within the meaning of the Military Rehabilitation and Compensation Act for the purposes of that Act;

immediately before the death of the person.

"armed services widower" means a man who was the partner of:

                     (a)  a person who was a veteran for the purposes of any provisions of the Veterans' Entitlements Act; or

                     (b)  a person who was a member of the Forces for the purposes of Part IV of that Act; or

                     (c)  a person who was a member of a Peacekeeping Force for the purposes of Part IV of that Act; or

                     (d)  a person who was a member within the meaning of the Military Rehabilitation and Compensation Act for the purposes of that Act;

immediately before the death of the person.

"illness separated couple" has the meaning given by subsection (7).

"member of a couple" has the meaning given by subsections (2), (3), (3A), (6) and (6A).

"partner , in relation to a person who is a member of a couple" , means the other member of the couple.

"partnered" has the meaning given by subsection (11).

"partnered (partner getting benefit)" has the meaning given by subsection (11).

"partnered (partner getting neither pension nor benefit)" has the meaning given by subsection (11).

"partnered (partner getting pension)" has the meaning given by subsection (11).

"partnered (partner getting pension or benefit)" has the meaning given by subsection (11).

"partnered (partner in gaol)" has the meaning given by subsection (11).

"prohibited relationship" has the meaning given by subsections (12) and (13).

"respite care couple" has the meaning given by subsection (8).

Member of a couple--general

             (2)  Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

                     (a)  the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

                    (aa)  both of the following conditions are met:

                              (i)  a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

                             (ii)  the person is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

                     (b)  all of the following conditions are met:

                              (i)  the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner );

                             (ii)  the person is not legally married to the partner;

                            (iii)  the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;

                            (iv)  both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

                             (v)  the person and the partner are not within a prohibited relationship.

Member of a couple--criteria for forming opinion about relationship

             (3)  In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

                     (a)  the financial aspects of the relationship, including:

                              (i)  any joint ownership of real estate or other major assets and any joint liabilities; and

                             (ii)  any significant pooling of financial resources especially in relation to major financial commitments; and

                            (iii)  any legal obligations owed by one person in respect of the other person; and

                            (iv)  the basis of any sharing of day-to-day household expenses;

                     (b)  the nature of the household, including:

                              (i)  any joint responsibility for providing care or support of children; and

                             (ii)  the living arrangements of the people; and

                            (iii)  the basis on which responsibility for housework is distributed;

                     (c)  the social aspects of the relationship, including:

                              (i)  whether the people hold themselves out as married to, or in a de facto relationship with, each other; and

                             (ii)  the assessment of friends and regular associates of the people about the nature of their relationship; and

                            (iii)  the basis on which the people make plans for, or engage in, joint social activities;

                     (d)  any sexual relationship between the people;

                     (e)  the nature of the people's commitment to each other, including:

                              (i)  the length of the relationship; and

                             (ii)  the nature of any companionship and emotional support that the people provide to each other; and

                            (iii)  whether the people consider that the relationship is likely to continue indefinitely; and

                            (iv)  whether the people see their relationship as a marriage-like relationship or a de facto relationship.

          (3A)  The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

Member of a couple--special excluding determination

             (6)  A person is not a member of a couple if a determination under section 24 is in force in relation to the person.

Note:          Section 24 allows the Secretary to treat a person who is a member of a couple as not being a member of a couple in special circumstances.

          (6A)  A person who:

                     (a)  has claimed youth allowance and is not independent within the meaning of Part 3.5; or

                     (b)  is receiving a youth allowance and is not independent within the meaning of Part 3.5; or

                     (c)  is a member of a couple of which a person referred to in paragraph (b) is the other member;

is not a member of a couple for the purposes of:

                     (d)  the provisions of this Act referred to in the table at the end of this subsection; and

                     (e)  any provision of this Act that applies for the purposes of a provision mentioned in paragraph (d); and

                      (f)  any provision of this Act that applies for the purposes of Module E (Ordinary income test) of the Pension PP (Single) Rate Calculator in section 1068A.

Note:          Paragraphs (e) and (f) have the effect of treating a person as not being a member of a couple in provisions that apply for the purposes of the income test, assets test, liquid assets test or compensation recovery provisions, including section 8 (Income test definitions), sections 11 and 11A (Assets test definitions), section 14A (Social security benefit liquid assets test provisions), section 17 (Compensation recovery definitions), section 19B (Financial hardship provisions liquid assets test definition), Part 2.26 (Fares allowance), Part 3.10 (General provisions relating to the ordinary income test) and Part 3.12 (General provisions relating to the assets test).

 

Affected provisions

Item

Provisions of this Act

Subject matter

1

Subdivision AB of Division 2 of Part 2.11

Youth allowance assets test

1A

section 500Q

Parenting payment assets test

2

sections 549A to 549C

Youth allowance liquid assets test

3

Subdivision B of Division 2 of Part 2.11A

Austudy payment assets test

4

sections 575A to 575C

Austudy payment liquid assets test

5

section 598

Newstart allowance liquid assets test

6

sections 611 and 612

Newstart allowance assets test

7

sections 660YCJ and 660YCK

Mature age allowance assets test

8

section 676

Sickness allowance liquid assets test

9

sections 680 and 681

Sickness allowance assets test

10

sections 733 and 734

Special benefit assets test

11

section 771HF

Partner allowance assets test

11A

Part 2.26

Fares allowance

12

Module E of Pension Rate Calculator A

Ordinary income test

13

Module G of Pension Rate Calculator A

Assets test

14

Module F of Pension Rate Calculator D

Ordinary income test

15

Module H of Pension Rate Calculator D

Assets test

16

Module H of Youth Allowance Rate Calculator

Income test

17

Module D of the Austudy Payment Rate Calculator

Income test

18

Module G of Benefit Rate Calculator B

Income test

19

Part 3.14

Compensation recovery

Illness separated couple

             (7)  Where 2 people are members of a couple, they are members of an illness separated couple if:

                     (a)  they are unable to live together in their home as a result of the illness or infirmity of either or both of them; and

                     (b)  because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and

                     (c)  that inability is likely to continue indefinitely.

Respite care couple

             (8)  Where 2 people are members of a couple, they are members of a respite care couple if:

                     (a)  one of the members of the couple has entered approved respite care; and

                     (b)  the member who has entered the approved respite care has remained, or is likely to remain, in that care for at least 14 consecutive days.

             (9)  For the purpose of this Act, a person is in approved respite care on a particular day if the person is eligible for:

                     (a)  a respite supplement in respect of that day under the Subsidy Principles made for the purposes of subparagraph 44-5(1)(a)(i) of the Aged Care Act 1997 ; or

                     (b)  a respite care supplement in respect of that day under section 44-12 of the Aged Care (Transitional Provisions) Act 1997 .

Temporarily separated couple

          (9A)  Two people are members of a temporarily separated couple if they:

                     (a)  are members of a couple for the purposes of this Act; and

                     (c)  are living separately and apart from each other but not on a permanent or indefinite basis; and

                     (d)  are neither an illness separated nor a respite care couple.

Note:          For member of a couple see subsection 4(2) and section 24.

Standard family situation categories

           (11)  For the purposes of this Act:

                     (a)  a person is partnered if the person is a member of a couple; and

                     (b)  a person is partnered (partner getting neither pension nor benefit) if the person is a member of a couple and the person's partner:

                              (i)  is not receiving a social security pension; and

                             (ii)  is not receiving a social security benefit; and

                            (iii)  is not receiving a service pension, income support supplement or a veteran payment; and

                     (c)  a person is partnered (partner getting pension or benefit) if the person is a member of a couple and the person's partner is receiving:

                              (i)  a social security pension; or

                             (ii)  a social security benefit; or

                            (iii)  a service pension, income support supplement or a veteran payment; and

                     (d)  a person is partnered (partner getting pension) if the person is a member of a couple and the person's partner is receiving:

                              (i)  a social security pension; or

                             (ii)  a service pension, income support supplement or a veteran payment; and

                     (e)  a person is partnered (partner getting benefit) if the person is a member of a couple and the person's partner is receiving a social security benefit; and

                      (f)  a person is partnered (partner in gaol) if the person is a member of a couple and the person's partner is:

                              (i)  in gaol; or

                             (ii)  undergoing psychiatric confinement because the partner has been charged with committing an offence.

Note 1:       For social security pension see subsection 23(1).

Note 2:       For in gaol see subsection 23(5).

Note 3:       For psychiatric confinement see subsections 23(8) and (9).

Prohibited relationship

           (12)  For the purposes of this Act, a person and his or her partner are within a prohibited relationship if the person is:

                     (a)  an ancestor or a descendant of the partner; or

                     (b)  a brother, sister, half-brother or half-sister of the partner.

           (13)  For the purposes of subsection (12), a child who is, or has ever been, an adopted child of a person is taken to be the natural child of that person and the person is taken to be the natural parent of the child.



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