Effect of marriage and 'marriage-like relationships'

Contributed by Danny Shaw and Dianne Anagnos and current to 1 September 2005

Centrelink must consider whether a person is a ‘member of a couple’ or not when it decides:

• whether a person qualifies for certain payments (such as parenting payment); or
• at what rate the person should be paid (couple or single rate).

Centrelink makes its decision under rules set out in the Social Security Act (s.4(2)-(6)).

Perhaps the most controversial parts of the social security legislation are the rules for forming an opinion on:

• whether a person is living with a person of the opposite sex in a ‘marriage-like relationship’; or
• whether a married couple are living ‘separately and apart on a permanent or indefinite basis’.

WHO IS ‘A MEMBER OF A COUPLE’?

The Social Security Act defines a member of a couple as:

• a legally married person who is not living separately and apart from the other person on a permanent or indefinite basis;
• a person who is having a relationship with a person of the opposite sex which, in the opinion of Centrelink, is a ‘marriage-like relationship’.

Appealing against a Centrelink decision

If Centrelink decides that a person is a member of a couple and has received a social security payment for which they were not eligible, or at a rate higher than they were entitled to, it may raise and recover the amount as a debt.

It is important for people to know and exercise their appeal rights concerning such a decision, as it is not always easy to decide when someone is a member of a couple according to the definition in the Act. This is particularly important where Centrelink is considering referring the case to the Director of Public Prosecutions. Anyone in this situation should contact the Welfare Rights Centre for advice.

Lesbian and gay couples

People of the same sex cannot be regarded as being members of a couple for any social security purpose.

People who are not legally married

In determining whether an unmarried person is living as a member of a couple in a marriage-like relationship, Centrelink must have regard to all the circumstances, including particular criteria set out in s.4(3) that include:

• financial arrangements
• social and sexual aspects of the relationship
• accommodation and domestic arrangements
• the nature of the two people’s commitment to each other.

No one factor should be given any particular weight compared to others (s.4(3)).

People who are legally married

The same factors are considered for legally married people, but the way they are assessed is different. Under s.4(2)(a), a married person is normally considered to be a member of a couple unless they are ‘living separately and apart on a permanent or indefinite basis’.

Summary of position for same sex partners

The Social Security Act requires that a person must be in a relationship with a person of the opposite sex and be married or in a marriage-like relationship to be a member of a couple.

This means that when Centrelink calculates your benefits, it will only take your partner’s income into account if they are the opposite sex. Given individual rates are often higher than for those in a couple it may mean someone in a same sex relationship can be financially better off.

If you are a fulltime carer for your partner you may be eligible for a Carer’s Allowance but you would be classed as a carer, not a partner.

If you have a person under the age of 16 living with you, even if you are not the biological parent, you may be able to get a supporting parent benefit. You will need to provide the necessary details of your relationship with the child and provide supporting documentation if requested.

Each case is assessed on its merits. If you are a student, living in a same-sex relationship is not proof of “independence” for youth allowance, unlike a heterosexual relationship.

MARRIED PEOPLE WHO DO NOT LIVE TOGETHER

Making a decision about the existence of a relationship is different from making a decision about the deterioration of a relationship. A legally married couple who choose to live in separate houses, but who are not otherwise estranged, may still be considered to be members of a couple in terms of the Act. On the other hand, a married couple who share a house, but whose relationship has broken down, may be regarded as ‘living separately and apart under one roof’.

SEPARATION DUE TO ILLNESS

Where the members of a legally married couple are separated indefinitely because of illness or infirmity, special provisions apply so that they can continue to be classified as members of a couple but, in recognition of higher living and accommodation costs, the maximum rate payable to each increases from the couple rate to the single rate.

However, the rate of payment ultimately payable will still be determined by reference to their combined income and assets (s.4(7)).

WHERE A PERSON CANNOT CONTRIBUTE TO THE RELATIONSHIP

It can be decided that two people are no longer members of a couple where the illness or infirmity of one is such that they no longer play a meaningful role in the relationship (for example, because of Alzheimer’s disease or a brain injury).

In this case there is no reference to the other person’s income or assets in determining each person’s rate, and each is treated as single for the purposes of the Act, including, for example, qualification for parenting payment (single).

CENTRELINK’S DISCRETION TO MAKE AN EXCEPTION

Centrelink can decide to treat a legally married person or a person in a marriage-like relationship as not being a member of a couple where there is a ‘special reason’ to do so (s.24). The discretion can be applied where there is not the pooling of resources usually expected in a marriage, and the circumstances are ‘unusual, uncommon and exceptional’.

REVIEW OF LIVING ARRANGEMENTS

Someone who applies for, or receives, parenting payment (single) may be given a review of living arrangements form, requiring them to provide details about their relationship with another person where there are certain trigger factors. The person must complete and return the form within 14 days, otherwise the payment may be suspended or cancelled.

When the notice is returned, Centrelink makes a decision about whether or not the person is a member of a couple.

APPEAL

If Centrelink decides that a person is living in a marriage-like relationship, the person can appeal this decision to an authorised review officer.

Continuation of payment

Social security legislation provides that payment may be continued pending the outcome of the appeal.

If the review officer confirms the decision, the person should consider lodging an appeal with the Social Security Appeals Tribunal and request that payment be continued pending outcome of the appeal (Social Security (Administration) Act s.131.

YOUTH ALLOWANCE COUPLES

There are different rules about being a member of a couple for the purposes of youth allowance. A person is ‘a member of a youth allowance couple’ if the person:

• has a relationship with a person of the opposite sex; and
• is married or has been in a marriage-like relationship for at least 12 months; and
• is over the age of consent in the relevant state or territory (s.1067C).