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B22/1992 Partner Service Pension - Claims or reviews of Defacto and/or non-citizen spouse cases.



Partner Service Pension - Claims or reviews of Defacto and/or non-citizen spouse cases.

Recently several cases have been highlighted for Central Office consideration involving:

.spouses and defacto spouses, who are the holders of preliminary permit visas, intending to reside permanently in Australia; and,

.defacto spouses who, for various reasons, are temporarily not residing with the veteran from whom they derive their service pension eligibility.

Applications for partner service pension from non-permanent residents.

New Claims Examiners and Delegates may receive applications from the partners of service pensioners who at the time of lodgement of claim do not have a permanent residence visa.  This does not prevent the applicant from being granted a partner's service pension so long as the applicant has either a 'preliminary permit' or 'stay permit' and there is an expressed intention of the applicant to seek to reside permanently in Australia.

'Australian residence definitions' are contained in Section 5G of the Veterans' Entitlements Act.  Subparagraph 5G(1)(b)(ii) specifically refers to 'a valid permanent entry permit' as defined in the Migration Act 1958. The Migration Amendment (No. 2) No. 196, 1991, section 83B defines the relevant terms as:

'preliminary permit' means:

(a) an extended eligibility (spouse) entry permit; or

(b) another permit, or a visa, under the regulations that is usually applied for by persons applying, or intending to apply, for a permanent entry permit;

'stay permit' means:

(a)a permanent entry permit; or

(b)a preliminary permit.

4.Significantly, amendments to the Migration Act included severe penalties for offences relating to 'pretended defacto' or 'pretended interdependency'.  Such offences under that Act include penalties of fines of $100,000 or imprisonment for ten years, or both.

5.If a veteran claims that a holder of a 'stay permit' is a defacto spouse and there is no evidence presented that would refute such a claim then the case should be processed in a similar manner to any partner service pension claim.  Care should be taken to investigate joint financial arrangements and whether or not there is an intention of the couple to reside with each other on a permanent basis.  The nationality of the holder of the 'stay permit' is not a relevant issue.

Temporary absence from co-habitation by a defacto partner

Routine reviewing of Ministerial representations has revealed cases where the Department has been criticised for not accepting that a defacto relationship can be maintained where a couple temporarily cease to reside with each other.

All staff processing reviews of defacto relationships should be aware of the provisions of the VEA contained in subsection 5E (3).  If the veteran and defacto both claim to still have a 'marriage like relationship' and there is a probability of their resuming to reside together action should not be pursued to cancel or suspend the partner's service pension.

'Any temporary absence' should be viewed in light of the information presented by the defacto couple.  For instance, a delegate determining the action to be followed in such a case might incorrectly interpret a temporary absence to be expressed as a defined time frame.  Legal definitions of 'temporary' are available, a most relevant one perhaps being Gafza v. Director-General of Social Security (1985), 60 A.L.R. 674, per Wilcox, J., at pp. 682-683.

In the Gafza case the principle determining issue was whether there was a purpose to the 'temporary absence'.  Delegates and examiners should endeavour to establish whether there is a reason or need for such absence and whether or not cohabitation is likely to resume before refuting the existence of a defacto relationship.  Each case will of course have to be determined on its own merits and to the delegates reasonable satisfaction, however, it is essential that consideration be given as to the purpose of a separation rather than to the length of time of the separation.

For enquiries regarding these or other Income Support issues, please contact Nigel Parmenter, Policy Administration and Advice Section, Central Office on (06) 289 6380

Peter Hawker

National Program Director

June 1992