Who is considered a 'spouse' for social security purposes?

Here's the breakdown of who is considered a 'spouse' for social security purposes, according to the provided legislation:

In Plain English

For social security, a "spouse" isn't just someone you're legally married to. It can also include someone you have a "de facto" relationship with. This means you're living together as a couple, even if you're not married. The government looks at things like your finances, living arrangements, and social life to decide if you're really in a de facto relationship. Even same-sex partners are considered spouses.

Detailed Explanation

The Social Security Act 1991 provides a detailed explanation of who is considered a "member of a couple," which effectively defines "spouse" for social security purposes.

Here's a breakdown based on section 4(2) of the Social Security Act 1991:

  • Legally Married: A person legally married to another person is considered a member of a couple unless, in the Secretary's opinion, they are living separately and apart on a permanent or indefinite basis.
  • Registered Relationship: If a relationship is registered under a prescribed law of a State or Territory (as per section 2E of the Acts Interpretation Act 1901), and the individuals are not living separately and apart permanently or indefinitely, they are considered a couple.
  • De Facto Relationship: A person is considered in a de facto relationship with another person (whether of the same or different sex) if they meet all of the following conditions:
    • They have a relationship.
    • They are not legally married.
    • The Secretary considers the relationship to be de facto based on subsections 4(3) and 4(3A) of the Social Security Act 1991.
    • Both individuals are above the age of consent in their State or Territory.
    • They are not in a prohibited relationship (defined in subsections 4(12) and 4(13) of the Social Security Act 1991 as being an ancestor/descendant or siblings).

Factors in Determining a De Facto Relationship:

Subsection 4(3) of the Social Security Act 1991 states that the Secretary must consider all circumstances of the relationship, including:

  • Financial Aspects: Joint ownership of assets, pooling of resources, financial obligations, and sharing of household expenses.
  • Nature of the Household: Joint responsibility for children, living arrangements, and distribution of housework.
  • Social Aspects: How the couple presents themselves to others, assessments from friends, and joint social activities.
  • Sexual Relationship: Whether a sexual relationship exists.
  • Commitment: Length of the relationship, companionship, emotional support, whether the relationship is likely to continue indefinitely, and whether the relationship is seen as marriage-like.

Important Considerations:

  • Living Separately: According to subsection 4(3A) of the Social Security Act 1991, the Secretary cannot consider a relationship to be de facto if the individuals are living separately and apart on a permanent or indefinite basis.
  • Youth Allowance: Subsection 4(6A) of the Social Security Act 1991 stipulates that a person claiming or receiving youth allowance who is not independent, or who is a member of a couple where the other member is claiming or receiving youth allowance and is not independent, is not considered a member of a couple for specific provisions of the Act, including income and asset tests.
  • Illness Separated Couple: Subsection 4(7) of the Social Security Act 1991 defines an illness separated couple as a couple who are unable to live together in their home as a result of the illness or infirmity of either or both of them; and because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and that inability is likely to continue indefinitely.
  • Respite Care Couple: Subsection 4(8) of the Social Security Act 1991 defines a respite care couple as a couple where one of the members of the couple has entered approved respite care; and 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.
  • Temporarily Separated Couple: Subsection 4(9A) of the Social Security Act 1991 defines a temporarily separated couple as a couple who are living separately and apart from each other but not on a permanent or indefinite basis; and are neither an illness separated nor a respite care couple.
  • Prohibited Relationship: Subsection 4(12) of the Social Security Act 1991 states that a person and his or her partner are within a prohibited relationship if the person is an ancestor or a descendant of the partner; or a brother, sister, half-brother or half-sister of the partner.