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36.5.5 Separated spouses - deemed dependency
As a matter of policy and consistency of approach, the dependency deeming provision in S4(5) is extended to incapacity cases under S19, see the discussion: Deeming provisions – dependency at 36.4.2.
However, an exception is made to this policy approach where a spouse (whether legally married or de-facto) is living separately and apart from the client (including cases of separation under the same roof). In such a case, the spouse is not deemed to be wholly dependent on the incapacitated client, but may be able to demonstrate dependency on the facts of the case.
The deeming provision will always be applied to children of the client who are living with the client, whatever the marital situation between the two parents.
Note that spouses may not be living 'separately and apart' even if one of them is temporarily absent from the joint household. The critical issue for examination is whether the consortium vitae ('the essence of the marriage bond') has broken down or not.
In the case of a de-facto relationship where the parties have temporarily separated, it is also possible that the de-facto partner is no longer a 'spouse', as defined in S4(1) of the SRCA. This is because he or she is no longer living with the client, an integral element of the extended definition of 'spouse'. This issue must be examined on the facts of the individual case, because it is possible that parties are still living together even if one is temporarily absent from the joint household, see the discussion of 'lived with' which raises similar considerations.
Whether spouses are separated is a matter of fact, to be assessed on the basis of all available evidence. Particular attention should be paid to any statements which may have been made to Centrelink(for the purposes of claiming sole parent pension or a single rate of benefit), to statements of fact made in documents filed in the Family Court or in other court proceedings, and to statements of fact made by the parties under oath or in statutory declarations.