2009 Commonwealth Same-sex Law Reforms


What was the law up to 1st July 2009?

Up until 1st July 2009, people living together in a same-sex defacto relationship were not defined as a defacto couple under the laws governing eligibility for Centrelink benefits.

This meant, for example:

  1. A lesbian birth mother could (subject to her eligibility otherwise) apply for sole parents benefits and the assets and income of her partner were disregarded;
  2. A same-sex defacto couple could separately apply for a single aged pension based on their separate assets and income;
  3. One party in a same-sex defacto couple could apply for unemployment benefits and the assets and income of their partner were disregarded

From 1st July 2009 the above is no longer the case.

How has the law changed from 1st July 2009?

From 1st July 2009 a same-sex couple living together on a genuine domestic basis are treated as a defacto couple by Centrelink.

This means that:

  1. From 1st July 2009, you must disclose to Centrelink if you are living together in a same-sex defacto relationship;
  2. Eligibility for Centrelink benefits will be based on the assets and income of both of the same-sex defacto couple;
  3. You will be assessed based on the assets and income eligibility criteria that apply for a couple;
  4. If you are eligible for an aged pension, the two of you will receive the couples pension, not separate pensions.

I have received Centrelink benefits before 1st July 2009, what impact might the laws have

If you are in a same-sex defacto relationship and received Centrelink benefits before 1st July 2009 then:

  1. From 1st July 2009 you are legally obliged to disclose to Centrelink that you are living in a defacto relationship;
  2. The new laws may have a significant impact on your eligibility and the amount you receive.

You should seek advice from your accountant or qualified financial adviser as soon as possible about the impact of the change of laws on your eligibility and the amount you receive.

What is the definition of a defacto relationship?

The definition of a defacto relationship is, in essence, a couple (whether of the same or opposite sex) who live together on a genuine domestic basis and are:

  1. Not legally married; and
  2. Not related by family.

In deciding if two people are a defacto couple, all of the circumstances of their relationship are taken into account, including such things as :

  1. The length of their relationship;
  2. The nature and extent of their common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence between them;
  5. Any arrangements for financial support between them;
  6. The ownership use and acquisition of their property;
  7. The degree of commitment to a shared life;
  8. The care and support of children;
  9. The reputation and public aspects of their relationship.

No one of the above factors is determinative of whether or not a defacto relationship exists.

If you would like advice about whether your relationship is a defacto relationship within the above definition, please make an appointment to see us.

Other Commonwealth Laws

The recognition of same-sex defacto relationships impacts on your entitlements and responsibilities across a wide range of Commonwealth laws, including:

  1. Tax;
  2. Superannuation;
  3. Defined benefits superannuation;
  4. Social security and family assistance;
  5. Medicare and PBS safety nets;
  6. Aged care;
  7. Immigration;
  8. Child support;
  9. Citizenship;
  10. Veterans affairs.

We recommend the Australian Government Attorney general’s website for a further information about the affect of the recognition of same-sex defacto relationships.

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