Both the SRCA and the Defence Act define 'spouse', but the SRCA's words at S4 take precedence.
In fact the effect of the Defence Act version is to clarify and somewhat restrict the reach of that SRCA definition, (see 1.22 for the ADB version).
Since 10 December 2008 the definition of 'spouse' in the SRCA has been:
'Spouse' includes:
a)in relation to an employee or a deceased employee – a person who is, or immediately before the employee's death was, a de facto partner of the employee; and
b)in relation to an employee or a deceased employee who is or was a member of the Aboriginal race of Australia or descendant of indigenous inhabitants of the Torres Strait Islands – a person who is or was recognised as the employee's husband or wife by the custom prevailing in the tribe or group to which the employee belongs or belonged.
Up to and including 9 December 2008 the definition read as follows:
'Spouse' includes:
a)in relation to an employee or a deceased employee – a person of the opposite sex to the employee who lives with, or immediately before the date of the employee's death lived with, the employee as the spouse of the employee on a bona fide domestic basis although not married to the employee, and
b)in relation to an employee or a deceased employee who is or was a member of the Aboriginal race of Australia or descendant of indigenous inhabitants of the Torres Strait Islands – a person who is or was recognised as the employee's husband or wife by the custom prevailing in the tribe or group to which the employee belongs or belonged.
The new definition is discussed at 1.21.3 and 1.21.4. The primary import of the changes is that from 10 December 2008 on persons in same-sex relationships and their families (such as children and parents) are treated exactly the same as persons in opposite-sex relationships. Determination of whether a person was the de facto partner of a deceased person will also be facilitated where a relationship has been registered under one of the prescribed Acts as a prescribed kind of relationship.
How the new definition of 'spouse' applies to partners of members who died prior to 10 December 2008
Although a person in a same-sex or other relationship not recognised by the SRCA prior to 10 December 2008 may have, from that date, become a 'spouse' for the purposes of the SRCA, they will not be entitled to any death benefits unless their partner's defence-related death occurred on or after that date.