The relevant provisions of Section 4(1) are:
In this Act, unless the contrary intention appears —
Eligible person means a person who —
(a) is an Australian soldier;
(b) is a munition worker;
(c) is a war worker;
(d) is a member of the Young Men's Christian Association who, during the First World War, was accepted for service with and served abroad with the Naval or Military Forces of Australia as a representative of that Association;
(e)has been awarded, in respect of his employment during the First World War, the Australian Mercantile Marine War Zone Badge, or the British Mercantile Marine Medal; and was during such employment domiciled in Australia or a Territory;
(f) after the commencement of the Second World War and before the commencement of the War Service Homes Act 1946, was employed under agreement as master, officer or seaman, or under indenture as apprentice, in sea-going service —
(i)on a ship engaged in trading between a port of a State or Territory and any other port, whether a port of a State or Territory or not; or
(ii)on a ship being a troop transport or hospital ship,
and was, during that employment, domiciled in Australia or a Territory; or
(g) not being a person to whom the last preceding paragraph applies, was, after the commencement of the Second World War and before the commencement of the War Service Homes Act 1946, employed, otherwise than as a member of the Defence Force, in sea-going service on a ship being a ship of war, troop transport or hospital ship, and was, during that employment, domiciled in Australia or a Territory,
and includes a widow, widower or dependent parent of a person specified in any of the paragraphs (a) to (g) of this definition;
widow of a person who has died includes a woman who was a de facto partner of the person immediately before the person died.
This definition of widow in subsection 4(1) of the Defence Service Homes Act 1918 applies in relation to someone whose de facto partner dies on or after the commencement of the amendment to the definition of widow by the Sam-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008 (1 July 2009). The previous definition (stated below) applies where the (eligible) person dies before 1 July 2009.
Widow, in relation to an eligible person who died after the commencement of section 3 of the Defence Service Homes Amendment Act 1978 (11 November 1978), includes a woman who lived with the eligible person as his wife on a permanent and bona fide domestic basis, although not legally married to him.
widower of a person who has died includes a man who was a de facto partner of the person immediately before the person died.
This definition of widower in subsection 4(1) of the Defence Service Homes Act 1918 applies in relation to someone whose de facto partner dies on or after the commencement of the amendment to the definition of widower by the Sam-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008 (1 July 2009). The previous definition (stated below) applies where the (eligible) person dies before 1 July 2009.
Widower, in relation to an eligible person who died after the commencement of paragraph 4(d) of the amending Act (19 December 1988), includes a man who lived with the eligible person as her husband on a permanent and bona fide domestic basis, although not legally married to her;
parent: without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is the product of a relationship the person has or had as a couple with a third person (whether of the same sex or a different sex). For this purpose, the other person cannot be the product of the relationship unless he or she is the biological child of at least one of the person or the third person or was born to a woman in the relationship.
dependent parent (where eligible person died on or after 1 July 2009) means a parent of a person mentioned in paragraphs (a) to (g) of the definition of Eligible person if;
(a) the person so mentioned:
(i) is dead; and
(ii) at the time of death, was not legally married and did not have a de facto partner; and
(b) one of the following subparagraphs applies:
(i) the parent is a widow or widower and was dependent on the person before the person became an eligible person;
(ii) the parent's spouse or de facto partner is so incapacitated as to be unable to contribute materially to that parent's support;
dependent parent (where eligible person dies before 1 July 2009) means a parent of a person mentioned in paragraphs (a) to (g) of the definition of Eligible person if;
(a) the person so mentioned:
(i) is dead; and
(ii) at the time of death, was not legally married; and
(b) one of the following subparagraphs applies:
(i) the parent is a widow or widower and was dependent on the person before the person became an eligible person;
(ii) the parent's husband or wife is so incapacitated as to be unable to contribute materially to that parent's support;
The following Subsections of the Act were repealed under the provisions of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008 (with effect from 1 July 2009). They are still applicable where the eligible person died before 1 July 2009:
Subsection 4(3A) A reference in this Act to the wife of a man shall, in relation to any time when a woman is living with him as his wife on a permanent and bona fide domestic basis, although not legally married to him, be read as including a reference to that woman.
Subsection 4(3B) A reference in this Act to the husband of a woman shall, in relation to any time when a man is living with her as her husband on a permanent and bona fide domestic basis, although not legally married to her, be read as including a reference to that man.
Subsection 4(3C) Where the Secretary is of the opinion that a person would, but for a temporary absence or an absence resulting from illness or infirmity, have been living with another person at any time on a permanent and bona fide domestic basis, the first mentioned person shall, for the purposes of this Act, be deemed to have been living with the other person on a permanent and bona fide domestic basis at that time.
Subsection 18(1) Subject to this section, the Secretary shall not issue a certificate of entitlement in relation to subsidy on an advance that a person may seek from the Bank unless satisfied that:
(a)the person is an eligible person, or the spouse or de facto partner of an eligible person who is temporarily or permanently insane;
The widow/widower of a deceased eligible person is an eligible person in her/his own right. This eligibility arises on the death of the person who performed the qualifying service. This right to entitlement is not affected by a discharge of the deceased person from the Forces due to misconduct.
Where an advance was taken out by the eligible person, with his/her spouse or de facto partner as a joint tenant and the advance was discharged before the eligible person's death, the widow/widower was never a borrower for any reason other than merely because she/he joined in the advance granted to her/his eligible spouse or de facto partner. The widow/widower has eligibility in her/his own right and subject to the entitlement requirements, access to an initial advance.
Where an advance to which the widow/widower was a joint borrower was still current at the time of the eligible person's death, the status of the widow/widower is not affected. In such cases, the widow/widower has eligibility in her/his own right and subject to the entitlement requirements, access to an initial advance. This may be used in respect of the existing home in conjunction with the current loan.
Where an advance was taken out in the sole name of the eligible person, upon the sole borrower's death and the finalisation of the estate, if the widow/widower is the beneficiary she/he has the option to have the property transferred to her/him under the same terms and conditions as the existing loan (this will require the refinancing of the existing loan). If the widow/widower proceeds on this basis, she/he will no longer be entitled to an initial advance (unless she is a Second World War ex-servicewoman listed in ss.4(2AA) or he is a 'veteran widower' of such a person). However, if the property is retained in the name of the sole borrower's estate, the widow/widower would have eligibility in her/his own right and, subject to entitlement requirements, would have access to an initial advance to acquire another home. It is important to counsel widows/widowers in this situation of the advantage, as far as their DSH entitlement is concerned, of retaining the property in the name of deceased spouse's estate until such time as they wish to exercise their own entitlements to acquire another home. (Entitlement GO 11 including Appendix A refers). This advantage needs to be weighed against the fact that while the property remains in the name of the estate, the widow/widower cannot obtain an additional advance nor a widow's/widower's advance because she/he does not own the property and she/he is not a borrower. It is also probable that she/he may not qualify for a rates rebate from the local authority. If she/he wishes, the widow/widower can effect the transfer of the property to her/him by using her/his entitlement to an initial loan to refinance the existing loan and also include the cost of any other purposes for which assistance may be granted.
The following circumstances may enable a dependant to be determined an eligible person:
13.2.2.1Dependent Parent of Deceased Eligible Person. Such a person is an eligible person provided that:
13.2.2.2Spouse of Insane Eligible Person. An application from the spouse or de facto partner of an eligible person may be admitted where there has been a Court Order or Declaration under the relevant legislation, or a medical certificate, that the eligible person is of unsound mind and incapable of managing his or her own affairs.
13.2.2.3De facto Widow. The definition of widow , in relation to an eligible person who dies on or after 11 November 1978 and before 1 July 2009, includes a woman who lived with the eligible person as his wife on a permanent and bona fide domestic basis although not legally married to him.
13.2.2.4De facto Widower. The definition of widower , in relation to an eligible person who dies on or after 19 December 1988 and before 1 July 2009 includes a man who lived with the eligible person as her husband on a permanent and bona fide domestic basis although not legally married to her.
Temporary absences, or absences due to illness or infirmity, may be regarded as not constituting a severance of the de facto marriage.
A de facto spouse or widow/widower who meets the statutory requirements is placed in the same position as a de jure (legal) spouse or widow/widower.
The recognition, for the purposes of the legislation, of de facto marriages is not retrospective ie. it does not extend to associations which terminated before the application of the particular section of the legislation, or, in the case of a widow, where the eligible person died before 11 November 1978, or in the case of a widower, where the eligible person died before 19 December 1988 or in the case of a same-sex couple, where the eligible person died before 1 July 2009.
The following circumstances will prevent a dependant from being determined an eligible person:
13.2.3.1Remarriage. On remarriage, a legal [Common Law] widow or widower ceases to come within the definition of widow or widower in s.4 and is no longer an eligible person. The legal marriage of a de facto [Deemed] widow or widower also means that she/he ceases to come within the definition widow or widower. If a legal [Common Law] widow or widower or a de facto [Deemed] widow or widower of an eligible person enters into a de facto relationship she/he continues to be a widow or widower and eligible for assistance until she/he legally remarries.
Where an application for assistance in respect of a particular proposal has been lodged by a widow or widower and a decision that she/he is an eligible person has been made before she/he remarries, she/he is deemed to continue to be such a person with respect to that application notwithstanding her/his remarriage before the date on which assistance is granted.
13.2.3.2Divorce following Remarriage. After remarriage, a subsequent divorce from an ineligible spouse or his/her death, will not restore a widow's or widower's eligibility for a DSH loan as a widow or widower of her/his former eligible spouse. However, the widow or widower may be eligible for a Home Support Loan if the widow/widower is receiving or is eligible for a benefit under the Veterans' Entitlements Act 1986 on the basis of the service of her/his former eligible spouse.
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