De facto Relationship
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Registered relationship
VEA ? [2]
A person who is in a prescribed registered relationship [3] with another person (their partner) and is not living separately and apart from their partner on a permanent basis is considered to be a member of a couple. It is not necessary to apply the Section 11A factors in these cases. If the relationship is not of a kind that is prescribed, the delegate may still consider the registration of a relationship in Australia or overseas in the context of applying section 11A.
Note: Local councils in Melbourne, Yarra and Sydney each have their own relationship registers, but council-based relationship registers are not prescribed for the purposes of the Acts Interpretation Act 1901.
Forming an opinion on a de facto relationship
VEA ? [4]
In forming an opinion as to whether two people are living together in a de facto relationship [3], section 11A [5] VEA requires a delegate [3] to have regard to all the circumstances of the relationship, including the following factors:
- the financial aspects of the relationship,
- the nature of the household,
- the social aspects of the relationship,
- any sexual relationship between the people, and
- the nature of the people's commitment to each other.
The order in which the factors are set out in section 11A [5] VEA does not imply an order of importance and does not place a limit on the factors that may be considered in a particular case.
Formalising an opinion that a de facto relationship exists
The delegate [3] of the Repatriation Commission [3], having considered all aspects of a relationship, must consciously form an opinion that de facto relationship [3] does or does not exist. The decision maker must ensure that as far as possible, the opinion is formed only after a complete appraisal of the relationship.
Weighing up the full circumstances of a relationship
The combination of all aspects of the relationship, its nature, the history, the personal and financial circumstances of each person, expectations for the future, whether children are in the relationship, are assessed in arriving at a decision to consider two people as living in a de facto relationship [3]. Each case must be determined on its own merits, giving consideration to cultural background (including gay, lesbian, bisexual and transsexual culture), ethnicity and religious beliefs when making a determination.
Claimant does not agree with the decision of the delegate
A pensioner, claimant or applicant who does agree with a decision of a delegate [3] that the person is or is not living in a de facto relationship [3] has the right to appeal such a decision. The person is required to demonstrate, having taken all the factors into account, how the relationship is:
More ? [6]
- substantially different from that of a married [3] couple, if appealing a delegate's decision that a de facto relationship exists,
- not substantially different from that of a married couple, if appealing a delegate's decision that a de facto relationship does not exist.
Absence by one member of a couple
Consideration is given to whether any absence by one person is of a temporary or a permanent/ indefinite nature when deciding whether a de facto relationship [3] continues to exist. If the home remains the home of the absent person, the person is still considered to be a member of a couple [3].
More ? [7]
Absence from home due to employment
If a member of a couple [3] is absent from home frequently only because of the nature of their employment, eg interstate truck driver or member of the defence forces, then the person is still considered to be living in a de facto relationship [3].
More ? [8]
Members of a couple living in separate residences
VEA ? [9]
A person who is considered to be living in a de facto relationship [3] will usually be living under the same roof as the other member. Generally, when two separate residences are maintained, there would rarely be sufficient indicators of the presence of a de facto relationship, excepting an illness separated couple [3] or respite care couple [3]. There may be instances where separate residences are maintained and the two people still consider themselves to be a couple. For example:
More ? [10]
- separate units in a retirement village [3]
- one of the partners [3] is caring for a parent or relative in that person's own home.
Policy library – Separated on Grounds Other Than Breakdown in Relationship
9.3.2/Definitions for Member of a Couple Status [15]
Policy library – Separated on Grounds Other Than Breakdown in Relationship
9.3.2/Definitions for Member of a Couple Status [15]
Policy Library – Separated as a Result of Respite or Illness
9.3.2/Illness Separated and Respite Care Couple [19]
A relationship (whether of the same sex or a different sex) that is registered under certain prescribed State or Territory laws that provide for registration of relationships (currently Victoria, Tasmania and the Australian Capital Territory). Registered relationships may also be known in some State and Territories as civil unions, civil partnerships and significant relationships.
A person is considered to be in a de facto relationship if the person is:
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living with another person (their partner) whether of the same sex or a different sex;
-
not legally married to the partner; and
-
certain features of that relationship are typical for members of a couple, and
-
the person and the partner are not within a prohibited relationship
Refer to section 11A [21] of the VEA for the full definition.
Note: A relationship needs to be established for a period of twelve months to be considered a 'de facto relationship' for VCES purposes.
A Delegate of the Commission [3] is a decision-maker who has been delegated authority to exercise the Commission's powers for the administration of pensions under the VEA [3].
A Delegate of the Commission [3] is a decision-maker who has been delegated authority to exercise the Commission's powers for the administration of pensions under the VEA [3].
According to Section 179 [21]of the VEA [21], the Commission is a body corporate under the name of Repatriation Commission.
A person is considered to be in a de facto relationship if the person is:
-
living with another person (their partner) whether of the same sex or a different sex;
-
not legally married to the partner; and
-
certain features of that relationship are typical for members of a couple, and
-
the person and the partner are not within a prohibited relationship
Refer to section 11A [21] of the VEA for the full definition.
Note: A relationship needs to be established for a period of twelve months to be considered a 'de facto relationship' for VCES purposes.
A person is considered to be in a de facto relationship if the person is:
-
living with another person (their partner) whether of the same sex or a different sex;
-
not legally married to the partner; and
-
certain features of that relationship are typical for members of a couple, and
-
the person and the partner are not within a prohibited relationship
Refer to section 11A [21] of the VEA for the full definition.
Note: A relationship needs to be established for a period of twelve months to be considered a 'de facto relationship' for VCES purposes.
A Delegate of the Commission [3] is a decision-maker who has been delegated authority to exercise the Commission's powers for the administration of pensions under the VEA [3].
A person is considered to be in a de facto relationship if the person is:
-
living with another person (their partner) whether of the same sex or a different sex;
-
not legally married to the partner; and
-
certain features of that relationship are typical for members of a couple, and
-
the person and the partner are not within a prohibited relationship
Refer to section 11A [21] of the VEA for the full definition.
Note: A relationship needs to be established for a period of twelve months to be considered a 'de facto relationship' for VCES purposes.
The term member of a couple [3] generally replaces married person in the current VEA.
A person is considered to be in a de facto relationship if the person is:
-
living with another person (their partner) whether of the same sex or a different sex;
-
not legally married to the partner; and
-
certain features of that relationship are typical for members of a couple, and
-
the person and the partner are not within a prohibited relationship
Refer to section 11A [21] of the VEA for the full definition.
Note: A relationship needs to be established for a period of twelve months to be considered a 'de facto relationship' for VCES purposes.
According to Section 5E(2) [22]of the VEA [22]a person is a member of a couple, if they are:
- legally married to another person and is not living separately and apart from the other person on a permanent basis; or
- living in a prescribed registered relationship with the other person (whether of the same sex or a different sex) and is not living separately and apart from that other person on a permanent basis; or
- all of the following conditions are met:
- living with another person, whether of the same sex or a different sex;
- not legally married to that person;
- in a de facto relationship with that person; and
- not in a prohibited relationship
The term “partnered” is also commonly used.
According to Section 5E(2) [22]of the VEA [22]a person is a member of a couple, if they are:
- legally married to another person and is not living separately and apart from the other person on a permanent basis; or
- living in a prescribed registered relationship with the other person (whether of the same sex or a different sex) and is not living separately and apart from that other person on a permanent basis; or
- all of the following conditions are met:
- living with another person, whether of the same sex or a different sex;
- not legally married to that person;
- in a de facto relationship with that person; and
- not in a prohibited relationship
The term “partnered” is also commonly used.
A person is considered to be in a de facto relationship if the person is:
-
living with another person (their partner) whether of the same sex or a different sex;
-
not legally married to the partner; and
-
certain features of that relationship are typical for members of a couple, and
-
the person and the partner are not within a prohibited relationship
Refer to section 11A [21] of the VEA for the full definition.
Note: A relationship needs to be established for a period of twelve months to be considered a 'de facto relationship' for VCES purposes.
A person is considered to be in a de facto relationship if the person is:
-
living with another person (their partner) whether of the same sex or a different sex;
-
not legally married to the partner; and
-
certain features of that relationship are typical for members of a couple, and
-
the person and the partner are not within a prohibited relationship
Refer to section 11A [21] of the VEA for the full definition.
Note: A relationship needs to be established for a period of twelve months to be considered a 'de facto relationship' for VCES purposes.
An illness separated couple is a couple who cannot share a home because of the illness or infirmity of one or both partners. Illness separated couples may be paid the higher single rate of pension. Refer to subsection 5R(5) [21] of the VEA for the full definition.
A respite care couple is a couple who Commission has determined are separated because one person has entered respite care [3] in a nursing home or hostel to give the other member of the couple a temporary break from caring for that person.
Members of a respite care couple are entitled to be paid the single rate of pension.
Refer to subsection 5R(6) of the VEA [21] for the full definition.
According to subsection 5M(3) of the VEA [21], premises constitute a retirement village if:
- the premises are residential premises; and
- accommodation in the premises is primarily intended for persons who are at least 55 years old; and
- the premises consist of one or more of the following kinds of accommodation:
- self-care units;
- serviced units;
- hostel units; and
- the premises include communal facilities for use by occupants of the units referred to above.
A person's 'partner' is someone who is a member of a couple with that person.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/16109%23comment-form
[2] https://clik.dva.gov.au/book/export/html/16109#tgt-cspol_part9_ftn364
[3] https://clik.dva.gov.au/%23
[4] https://clik.dva.gov.au/book/export/html/16109#tgt-cspol_part9_ftn365
[5] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-vea
[6] https://clik.dva.gov.au/book/export/html/16109#tgt-cspol_part9_ftn366
[7] https://clik.dva.gov.au/book/export/html/16109#tgt-cspol_part9_ftn367
[8] https://clik.dva.gov.au/book/export/html/16109#tgt-cspol_part9_ftn368
[9] https://clik.dva.gov.au/book/export/html/16109#tgt-cspol_part9_ftn369
[10] https://clik.dva.gov.au/book/export/html/16109#tgt-cspol_part9_ftn370
[11] https://clik.dva.gov.au/book/export/html/16109#ref-cspol_part9_ftn364
[12] https://clik.dva.gov.au/book/export/html/16109#ref-cspol_part9_ftn365
[13] https://clik.dva.gov.au/compensation-and-support-policy-library/part-12-compliance-and-obligations/125-reviews-and-appeals/1252-income-support-and-review-decisions-repatriation-commission
[14] https://clik.dva.gov.au/book/export/html/16109#ref-cspol_part9_ftn366
[15] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/932-member-couple/definitions-member-couple-status
[16] https://clik.dva.gov.au/book/export/html/16109#ref-cspol_part9_ftn367
[17] https://clik.dva.gov.au/book/export/html/16109#ref-cspol_part9_ftn368
[18] https://clik.dva.gov.au/book/export/html/16109#ref-cspol_part9_ftn369
[19] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/932-member-couple/illness-separated-and-respite-care-couple
[20] https://clik.dva.gov.au/book/export/html/16109#ref-cspol_part9_ftn370
[21] http://clik.dva.gov.au/legislation-library
[22] http://www.comlaw.gov.au/Series/C2004A03268