Last amended: 19 August 2011
A person and their partner [3] are considered to be a member of a couple if:
VEA ? [6]
A married person [3] is a member of a couple if:
VEA ? [7]
A person is a member of a couple if:
Registered relationships may also be known in particular State and Territories as civil unions, civil partnerships and significant relationships.
The Acts Interpretation (Registered Relationships) Regulations 2008 currently recognises the following relationships under the Victorian, Tasmanian and Australian Capital Territory relationship registers:
VEA ? [8]
A person is considered to be a member of a couple when all of the following conditions are met:
VEA ? [10]
A person in a de facto relationship is to be treated as living with another person during:
if the Commission [3] is of the opinion that they would, but for the absence, have been living together during that period.
VEA ? [11]
The Commission [3] may make a written determination that two people are members of an illness separated couple [3] if the Commission is satisfied that:
VEA ? [13]
The Commission [3] may determine that two people are members of a respite care couple [3] if the Commission is satisfied that:
VEA ? [15]
Where specific criteria are met, the Repatriation Commission [3] may make a written determination that a person who is a member of a couple [3] is not to be treated as a member of a couple [3] for all purposes of the VEA [3].
More ? [16]
A person's sex, for the purpose of the Marriage Act 1961, is determined at the date of marriage. Sex affirmation surgery (also called sex re-assignment surgery) after the date of marriage does not invalidate the marriage. This is because at the date of marriage the couple were a male and a female.
Therefore, a couple who are legally married and not living separately and apart from one another on a permanent or indefinite basis, can continue to be regarded as legally married, despite one of the members of the couple having undergone sex affirmation surgery.
Policy Library – Member of a Couple
9.3.2/De facto relationship [21]
9.3.2/Factors Considered to Assess a De facto Relationship Exists [22]
Policy Library – Member of a Couple
9.3.2/Regarding a Member of a Couple as Not a Member of a Couple [31]
A person's 'partner' is someone who is a member of a couple with that person.
The term member of a couple [3] generally replaces married person in the current VEA.
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:
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 [33] 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.
Two people are within a prohibited relationship as defined in section 5E(6) [33] of the VEA if the person is:
(a) an ancestor or a descendant of the other person; or
(b) a brother, sister, half-brother or half-sister of the partner.
For this definition, an adopted child is taken to be a natural child but the tracing rule as described in 5Q(5) does not apply.
According to Section 179 [33]of the VEA [33], the Commission is a body corporate under the name of Repatriation Commission.
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) [33] 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 [33] for the full definition.
The term member of a couple [3] generally replaces married person in the current VEA.
A person's 'partner' is someone who is a member of a couple with that person.
According to Section 179 [33]of the VEA [33], 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 [33] 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.
Two people are within a prohibited relationship as defined in section 5E(6) [33] of the VEA if the person is:
(a) an ancestor or a descendant of the other person; or
(b) a brother, sister, half-brother or half-sister of the partner.
For this definition, an adopted child is taken to be a natural child but the tracing rule as described in 5Q(5) does not apply.
According to Section 179 [33]of the VEA [33], the Commission is a body corporate under the name of Repatriation Commission.
According to Section 179 [33]of the VEA [33], the Commission is a body corporate under the name of Repatriation Commission.
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) [33] of the VEA for the full definition.
According to Section 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
According to Section 179 [33]of the VEA [33], the Commission is a body corporate under the name of Repatriation Commission.
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 [33] for the full definition.
Respite care is care provided for one member of a couple in a nursing home or hostel on a temporary basis so that their partner can have a break from providing care. For care to be recognised as respite care under the VEA, it must be Government subsidised care provided under the Aged Care Act 1997.
A pensioner receiving such care, and their partner (a respite care couple), are entitled to be paid the single rate of pension.
For the full definition of respite care, refer to subsection 5NC(8) of the VEA [33].
According to Section 179 [33]of the VEA [33], the Commission is a body corporate under the name of Repatriation Commission.
According to Section 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
According to Section 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
Veterans' Entitlements Act 1986.
Last amended: Written determinations required for illness separated or respite couples
Determinations by the Commission [3] under section 5R(5) of VEA and section 5R(6) of VEA are made in writing.
The criteria are:
(a) 2 people are members of a couple; and
(b) they are unable to live together in their home as a result of the illness or infirmity of either or both of them; and
(c) because of that inability to live together, their living expenses are, or are likely to be greater than they would otherwise be; and
(d) that inability is likely to continue indefinitely.
Delegates must consider a couple's whole circumstances when considering whether they are unable to continue to live together indefinitely. The decision should therefore be based on an overall assessment of the couple's circumstances and intentions, rather than just their immediate situation.
There is no requirement that illness separated couples provide evidence that their living expenses have increased as a result of their inability to live together. It is automatically accepted that this is the case. This is because the members of the couple are no longer able to share their costs of daily living.
There is no need to obtain medical evidence of illness or infirmity where a couple are no longer living together and one or both members of a couple:
More ? [36]
In other cases, further evidence may be required to establish why the couple are unable to live together in their home.
For income support purposes, the term transition care is restricted to government subsidised transition care, that is, care funded under the Aged Care Act 1997. The rules outlined below do not cover privately funded transition care arrangements.
Transition care arrangements are short term care arrangements for older people who have been in hospital and require therapy focused care for a limited period of time, to recover skills and aid recovery. A person must have been assessed by an ACAT team as being eligible for at least low level residential aged care on an ongoing basis in order to be eligible for transition care.
Transition care can usually be provided for up to 12 weeks, however in certain circumstances, this may be extended to 18 weeks. People in transition care are required to pay a daily co-payment for their care.
Transition care may provide the time and support a person needs to finalise and access longer term care arrangements. A significant number of DVA clients enter either low or high level residential aged care after discharge from transition care.
When assessing whether the illness separated rules can be applied when one or both members of a couple are in transition care, it is important that a person's whole circumstances and their future intentions are considered. A period in transition care which is known, or is likely, to lead to the person's entry to residential care, rather than a permanent return to the couple's home, can be accepted as meeting the test of “likely to continue indefinitely”. A determination that the couple can be regarded as illness separated can therefore be made.
Where a couple take up residence in a single hostel unit in a retirement village [3], they may be determined to be an illness separated couple [3]. They must be residents of the hostel part of the village with communal facilities, having been assessed by an ACAT [3] team as requiring low level care [3].
More ? [37]
A couple who are living in separate units, which may or may not be connected, in a retirement village [3], cannot be assessed as being an illness separated couple [3] automatically. This is because couples may take up this form of accommodation as a lifestyle choice, rather than from medical necessity. However, if they are able to satisfy all other requirements for being regarded as illness separated, which is supported by a report from a medical practitioner, then a written determination may be made under section 5R(5) VEA to regard the couple as illness separated.
More ? [38]
The illness separated written determination may be revoked, in writing, if the delegate [3] is satisfied that a couple is living separately and apart for reasons other than illness. Where there has been an irretrievable breakdown in the relationship, then each person is regarded as a non member of a couple [3].
More ? [39]
Respite is provided for carers who normally provide care to their partner [3] or patient at home on a full time basis. The intention of respite is to provide relief to the carer from their caring duties, by providing short term accommodation to the patient, in an approved facility [3]. Commonwealth legislation provides funding for access to 63 days respite care, per financial year, per patient.
More ? [40]
A member of a couple [3] who funds their own respite care [3] is not considered to be a respite care couple [3] under the VEA [3] and continue to be entitled to the partnered rate [3] of pension or payment. However, rent assistance [3] may be payable for privately funded respite care. Written evidence of date of admission to the facility and discharge and the fees charge is required and other eligibility criteria for the payment of rent assistance must be satisfied.
More ? [41]
Policy Library – Separated as a Result of Illness on an Indefinite Basis
9.3.2/Definitions for Member of a Couple Status [42]
Policy Library – Definition of Non Illness Separated Spouse
9.3.3/Definitions for Not a Member of a Couple Status [48]
Policy Library – Separated as a Result of Respite
9.3.2/Definitions for Member of a Couple Status [42]
9.2.4/Respite Care [50]
According to Section 179 [33]of the VEA [33], the Commission is a body corporate under the name of Repatriation Commission.
According to subsection 5M(3) of the VEA [33], premises constitute a retirement village if:
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) [33] of the VEA for the full definition.
Aged Care Assessment Team.
Assessment with a member of an Aged Care Assessment Team is required for a person needing the following;
An ACAT will discuss the person's current situation and work out if they are eligible to receive government subsidised aged care services.
If a person can receive aged care services, an ACAT assessment will assist in accessing the right services for the care that is required.
An ACAT assessment is not required for aged care services that are not subsidised by the government. Examples might be services offered by volunteer groups and charitable organisations.
ACAT assessment is not necessary to receive aged care services through some government funded programs such as Home and Community Care, Day Therapy Centres and the National Respite for Carers Program as these organisations deliver these services that have their own, less formal, assessment procedures.
Note: An Aged Care Assessment Team is referred to as an Aged Care Assessment Service (ACAS) in Victoria. Where there is reference to the term ACAT, it intends the Victorian term ACAS to be interchangeable.
Hostel type services, which cater for those people who need middle to lower levels of help with daily tasks and personal care.
Services in this category include:
Low level care is also known as Category 5-8 care.
According to subsection 5M(3) of the VEA [33], premises constitute a retirement village if:
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) [33] of the VEA for the full definition.
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 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
A person's 'partner' is someone who is a member of a couple with that person.
An approved facility under the Aged Care Act 1997 is one that has been assessed to meet certain standards of care and accommodation.
Note: Nursing homes and nursing home beds that are fully funded by a State Government do not come under the Aged Care Act 1997.
According to Section 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
Respite care is care provided for one member of a couple in a nursing home or hostel on a temporary basis so that their partner can have a break from providing care. For care to be recognised as respite care under the VEA, it must be Government subsidised care provided under the Aged Care Act 1997.
A pensioner receiving such care, and their partner (a respite care couple), are entitled to be paid the single rate of pension.
For the full definition of respite care, refer to subsection 5NC(8) of the VEA [33].
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 [33] for the full definition.
Veterans' Entitlements Act 1986.
Most income support pensions and many of the associated allowances are paid at different rates depending on whether the recipient is partnered [3] or single. Typically, the partnered rate is lower than the single rate to take account of the economies associated with two persons pooling their resources.
Rent Assistance is an allowance which may be paid to a service pensioner, income support supplement (ISS) or veteran payment recipient to assist in meeting the cost of rental accommodation.
To receive rent assistance a pensioner must be paying rent (other than Government rent) for accommodation in Australia, and the amount paid must exceed a certain threshold.
VEA ? [55]
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.
VEA ? [56]
In forming an opinion as to whether two people are living together in a de facto relationship [3], section 11A [17] VEA requires a delegate [3] to have regard to all the circumstances of the relationship, including the following factors:
The order in which the factors are set out in section 11A [17] 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.
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.
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.
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 ? [57]
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 ? [58]
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 ? [59]
VEA ? [60]
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 ? [61]
Policy library – Separated on Grounds Other Than Breakdown in Relationship
9.3.2/Definitions for Member of a Couple Status [42]
Policy library – Separated on Grounds Other Than Breakdown in Relationship
9.3.2/Definitions for Member of a Couple Status [42]
Policy Library – Separated as a Result of Respite or Illness
9.3.2/Illness Separated and Respite Care Couple [26]
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:
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 [33] 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 [33]of the VEA [33], 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 [33] 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 [33] 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 [33] 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 [33] 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) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
According to Section 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
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 [33] 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 [33] 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) [33] 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 [33] for the full definition.
According to subsection 5M(3) of the VEA [33], premises constitute a retirement village if:
A person's 'partner' is someone who is a member of a couple with that person.
Last amended: 1 July 2009
According to section 11A [17] VEA an appraisal is required of the financial arrangements when forming an opinion about the existence or not of a de facto relationship [3]. The presence of financial support or interdependence may be a strong indicator of the presence of a de facto relationship. However, when other factors are present, the absence of such arrangements does not rule out the existence of a de facto relationship. Each or one member of a couple [3], whether married [3] or not, may choose to keep their financial and property arrangements separate, for socio-cultural, financial, legal or other reasons.
The following list is intended as a guide only and is not an exhaustive list of the possible joint financial arrangements which may be taken into account:
The following list is intended as a guide only and is not an exhaustive list of the possible domestic arrangements which may be taken into account when assessing the character of a relationship:
When two people are living together with their natural, step or adopted child/children, there is a strong indication that a family unit exists. The presence of a family unit may be indicated by the:
Consideration of the social aspects are an important part of forming an opinion about whether a de facto relationship [3] exists including:
Consideration is given to whether the two people have consistently represented themselves to other parties, such as their landlord, the local community, business proprietors, as being married [3] or in a de facto relationship [3].
Consideration is given to whether the two people share social and family activities together, such as:
The presence of a sexual relationship does not by itself prove the existence of a de facto relationship [3]; nor does its absence prove one does not exist. Where a sexual relationship exists, consideration is given to whether it is ongoing and exclusive (whether there are ongoing casual relationships with other partners), in addition to the degree of emotional support provided and other forms of interdependence which may exist.
The level of commitment to each other is considered in terms of the emotional attachment between the two people and whether it is qualitatively different to the commitment of either party to anyone else. Factors indicating the two people's level of dedication to one another include:
Consideration is given to each of the person's own ideas and perceptions about:
The couple may not perceive that they are in a de facto relationship, as they may be influenced by cultural, religious or social pressures, notwithstanding factors present which indicate a de facto relationship may exist.
The following factors may also be considered in the assessment of a de facto relationship [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 [33] 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) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
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 [33] 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 de facto is commonly used to describe persons living as a couple while not legally married. The term used in the VEA is de facto relationship which is defined in section 11A [33] of VEA.
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 [33] 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 [33] 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 [33] 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 [33] 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.
Under section 5R(3) [17] VEA, the Repatriation Commission [3] has discretion to determine in writing that, for any special reason, members of a couple [3] are not to be regarded as members of a couple for VEA purposes. This discretion should be exercised only where full consideration of all the circumstances relevant to the individual case would make it unjust or unreasonable not to do so. Generally the discretionary power should be used where a veteran's partner [3] is unable to or is prohibited from working, is not eligible for a pension or payment from DVA [3] or a pension, payment, benefit or allowance from Centrelink, and there is financial difficulty as a result of the couple's circumstances.
More ? [72]
VEA ? [73]
A person is a member of a couple under the VEA if they are living with another person as their partner, where both people are over the age of consent (applicable to the relevant state or territory), are living together on a permanent or indefinite basis, are not in a prohibited relationship (subsection 5E(6)), and are either:
The term "partnered" is also commonly used.
Note: When assessing a person's situation, it may be appropriate to consider whether the person's circumstances are such that they should in fact be regarded as living 'separately and apart' from their former partner. If a person is living separately and apart from their former partner on a permanent or indefinite basis they DO NOT meet the definition of a member of a couple and should be determined as single, without recourse to section 5R(3)
More ? [74]
The use of section 5R(3) [17] VEA is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted. It should be considered in circumstances where the couple is unable to take advantage of the benefits and efficiencies which normally arise from being able to pool and share their combined resources, this being one of the reasons for a lower partnered rate of pension or payment. This will include those circumstances where the couple are prevented from living together, or where financial circumstances or lack of access to other means of support mean that the expected benefits from being able to share resources do not arise.
The case being considered should be compared to a couple in similar circumstances but for whom the reasons to apply section 5R(3) do not exist. There must be some degree to which circumstances are outside the couple's or individual's control and cannot be changed.
Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case are:
Details on how to interpret and answer these 3 questions are below.
Is there a special reason to be considered in this couple's circumstances?
This discretion can ONLY be exercised 'for a special reason in the particular case'. In general, the circumstances must be unusual, uncommon, abnormal or exceptional. It is the context which generally determines whether the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
Decisions from the AAT [3] and Federal Court indicate that ineligibility for income support, of itself, is very unlikely to constitute 'special reason' for the exercise of section 5R(3). Decisions considering a person's financial difficulty is not, of itself, sufficient to constitute 'special reason'.
Is there a lack of being able to pool resources for the couple as a result of the circumstances?
Members of a couple in ordinary circumstances will pool their resources and share their expenses, making it cheaper for them to live than if they were 2 single people. A significant body of case law has established that the inability to pool resources for their mutual benefit is a special reason to exercise the discretion in section 5R(3).
Example: One partner is lost at sea and due to the body not being found, the Coroner will not declare the partner dead for 2 years. The surviving partner cannot pool resources and as a consequence may be eligible for the application of section 5R(3).
Generally, section 5R(3) does not apply if the couple are living together overseas. The decision maker in assessing couples living together overseas must be satisfied that the information provided is a special situation to warrant the application of section 5R(3). It is important to consider whether the couple can benefit from pooling of resources.
In the case of Cocks v Centrelink, the Federal Court found that Mr Cocks would not benefit from a pooling of resources whilst he was in Australia and his wife was overseas and that Mr Cocks would likewise not benefit from a pooling of resources while residing with his wife overseas as she has nothing to contribute to the pool. If possible, the decision maker should verify the circumstances stated. The social security system that applies to the country of residence needs to be also taken into account when assessing couples living overseas.
Is there financial difficulty as a result of the couple's circumstances?
Various tribunals and courts described financial difficulty for this purpose as not being able to provide for accommodation and the basic necessities of life or to be without adequate means of support.
In deciding whether or not to apply the discretion in section 5R(3), the overall financial situation should be considered. Income and readily available funds from assets should be compared to necessary expenditure.
Income, and readily available funds, from all sources should be taken into account. This includes, but is not limited to, income from employment, income support payments, investments, insurance and compensation pay outs, trusts, accessible superannuation, liquid assets, etc. Any in-kind support should be considered.
Necessary expenditure could include, for example, electricity, gas, telephone, rates, rent, groceries, transport and loan repayments.
Example: One member of a couple is in receipt of an income support payment at the partnered rate and the other member of the couple has no financial resources to contribute to the relationship and is not in receipt of an income support payment. The other member of the couple may not be in receipt of an income support payment due to being not residentially qualified or being subject to a Newly Arrived Residents Waiting Period (NARWP). As a consequence the couple are living on a partnered payment that is designed to support only half of a couple, with the result that they are in financial difficulty. The AAT has indicated that only being ineligible for income support is very unlikely to constitute a special reason for the purposes of the exercise of section 5R(3), but being in financial difficulty as a result of having a partner who is not residentially qualified for an income support payment or who is subject to the NARWP may constitute a special reason.
There may be circumstances in which factors other than income need to be taken into account in considering whether to apply the discretion. For instance, in some cases a couple may be worse off due to special expenses which have to be taken into account in establishing whether to apply the discretion.
The following situations are examples where it may be appropriate to consider that a person is not a member of a couple [3]:
Note 1: Where a veteran has been determined to be living separately and apart from his/her partner on a permanent or indefinite basis (including separation under the same roof), they do not satisfy the definition of member of a couple [3]. In these circumstances the higher non-partnered rate is already payable and a determination under section 5R(3) [17] VEA is not required.
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Note 2: The above circumstances are not exhaustive, and there may be other unusual or special reasons which may warrant the discretion in section 5R(3) [17] VEA being applied. Delegates must consider all cases on their individual merits, having regard to the ability of members of a couple to share their resources, and whether it would be unjust or unreasonable not to apply the discretion.
Situations where a spouse may be unable to make any contribution to a couple's finances include where a veteran:
VEA ? [76]
The rate of service pension [3], veteran payment and income support supplement [3] for a person who is not a member of a couple [3] is based on the not a member of a couple items in the tables in the Rate Calculator in Schedule 6 [17] in the VEA.
When calculating the rate of pension or payment after a determination under section 5R(3) [17] VEA is made, the person must be treated as not a member of a couple [3] for all the purposes of the VEA. The pension or payment assessment is therefore based on the lower income and assets limits that apply to a non-partnered person.
Note: The person is paid the single rate of payment and only their individual income and assets are included in the assessment of the rate of their payment. The income [3] and assets [3] of the person's partner are not to be included in the person's assessment. If the inability to share asset value with a partner [3] results in a lower pension or payment entitlement than would otherwise be payable (partnered rate), the discretion in section 5R(3) [17] VEA should not be exercised.
It is important to ensure that cases where the discretion under section 5R(3) is applied are kept under close review especially if there is a high risk of incorrect payments. A manual review is to be conducted every 13 weeks, earlier if warranted. However, if there is a very low risk of incorrect payment a review may only need to be conducted annually. The purpose of the review is to identify whether it is appropriate to continue to apply section 5R(3), or whether the person's circumstances have changed so that it is no longer appropriate to apply the discretion.
The review should include evaluating the circumstances at the time of the original decision to apply section 5R(3) with the current circumstances:
The review should consider whether reasonable steps have been taken to access funds from assets and/or income previously not readily accessible.
Whenever a claimant/recipient leaves Australia to visit their partner overseas, a review should be conducted to determine if section 5R(3) can still be applied whilst they are away.
Where a determination has been made under 5R(3), the recipient must be advised of their obligations to notify of any changes to the circumstances of both members of the couple not just the person in the assessment.
According to Section 179 [33]of the VEA [33], the Commission is a body corporate under the name of Repatriation Commission.
According to Section 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
A person's 'partner' is someone who is a member of a couple with that person.
The Department of Veterans' Affairs.
Administrative Appeals Tribunal.
The term not a member of a couple covers all persons who are not covered by the definitions of member of a couple [3].
A person's 'partner' is someone who is a member of a couple with that person.
The Department of Veterans' Affairs.
A person's 'partner' is someone who is a member of a couple with that person.
According to section 5H of the VEA [86] income is:
According to Section 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
Centrelink is a Government service delivery agency responsible for delivering a range of Commonwealth Government services (including social security pensions and allowances) to the Australian community through a network of more than 400 Centrelink offices.
A service pension is an income support payment broadly equivalent to the social security age and disability support pensions. It may be paid once a veteran or partner has reached the nominated age or is incapacitated for work.
ISS is an income support payment that may be paid to eligible war widows and widowers under the VEA and persons receiving wholly dependent partners' compensation under the MRCA, and who satisfy the means tests. It is an indexed rate, increased twice-yearly in March and September in line with changes to the cost of living and/or average wages. Income Support Supplement (ISS) legislation commenced on 20 March 1995. It is a payment created to replace the ceiling rate income support age, carer, wife and disability support pensions, paid to war widows/widowers by Centrelink.
The term not a member of a couple covers all persons who are not covered by the definitions of member of a couple [3].
The term not a member of a couple covers all persons who are not covered by the definitions of member of a couple [3].
According to section 5H of the VEA [86] income is:
An asset means any property, including property outside Australia.
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/16115%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/16100%23comment-form
[3] https://clik.dva.gov.au/%23
[4] clikpopup://DEF/Prohibited relationship
[5] clikpopup://DEF/Respite care couple
[6] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn347
[7] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn348
[8] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn349
[9] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn350
[10] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn351
[11] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn352
[12] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn353
[13] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn354
[14] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn355
[15] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn356
[16] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn357
[17] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-vea
[18] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn347
[19] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn348
[20] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn349
[21] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/932-member-couple/de-facto-relationship
[22] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/932-member-couple/factors-considered-assess-de-facto-relationship-exists
[23] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn350
[24] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn351
[25] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn352
[26] 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
[27] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn353
[28] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn354
[29] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn355
[30] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn356
[31] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/932-member-couple/regarding-member-couple-not-member-couple
[32] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn357
[33] http://clik.dva.gov.au/legislation-library
[34] http://www.comlaw.gov.au/Series/C2004A03268
[35] https://clik.dva.gov.au/user/login?destination=node/16091%23comment-form
[36] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn358
[37] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn359
[38] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn360
[39] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn361
[40] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn362
[41] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn363
[42] 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
[43] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn358
[44] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/92-residential-situation/924-care-assessment-rules/care-assessment-rules
[45] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn359
[46] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/92-residential-situation/925-special-residence-assessment-rules/special-residence-basic-assessment-rules
[47] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn360
[48] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/933-not-member-couple/definitions-not-member-couple-status
[49] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn361
[50] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/92-residential-situation/924-care-assessment-rules/respite-care
[51] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn362
[52] https://clik.dva.gov.au/compensation-and-support-policy-library/part-5-income-support-allowances-and-benefits/51-rent-assistance
[53] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn363
[54] https://clik.dva.gov.au/user/login?destination=node/16109%23comment-form
[55] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn364
[56] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn365
[57] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn366
[58] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn367
[59] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn368
[60] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn369
[61] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn370
[62] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn364
[63] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn365
[64] 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
[65] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn366
[66] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn367
[67] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn368
[68] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn369
[69] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn370
[70] https://clik.dva.gov.au/user/login?destination=node/16134%23comment-form
[71] https://clik.dva.gov.au/user/login?destination=node/16137%23comment-form
[72] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn371
[73] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn372
[74] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn373
[75] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn374
[76] https://clik.dva.gov.au/book/export/html/16115#tgt-cspol_part9_ftn375
[77] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/934-effect-relationship-status-rate/not-member-couple-rate
[78] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn371
[79] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn372
[80] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/933-not-member-couple/living-separately-and-apart
[81] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn373
[82] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/933-not-member-couple/separated-under-one-roof
[83] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn374
[84] https://clik.dva.gov.au/legislation-library
[85] https://clik.dva.gov.au/book/export/html/16115#ref-cspol_part9_ftn375
[86] http://clik/health-procedure-library/health-information-and-management-notes-himn/vhc/072014-vhc-veterans-home-care