Why is the meaning of spouse for super and tax purposes important?
The meaning of spouse is relevant for a range of purposes including:
- eligibility to receive a member’s death benefits directly from a super fund (subject to the fund’s governing rules)
- eligibility to receive a member’s death benefits in pension form (also subject to the fund’s governing rules)
- the availability of the death benefit dependant tax concessions, and
- a superannuation fund’s eligibility to claim a tax deduction to fund an ‘anti-detriment payment’ for death benefit lump sums.
The Superannuation Industry (Supervision) Act 1993 (Cth) (SIS) definition is also relevant in determining eligibility for spouse contributions-splitting (subject to the fund’s rules) and is used for the purpose of various superannuation fund investment restrictions including:
- who is a relative for the purpose of the prohibition against lending or providing financial assistance to members or their relatives, and
- who is a related party for the purposes of the restrictions on acquiring assets from a related party or holding in-house assets.
The definition for tax purposes affects eligibility for a number of tax benefits including:
- the spouse contributions tax offset,
- the non-concessional contributions cap concession for downsizer contributions1, and
- ability to transfer unused seniors and pensioners tax offset to a partner.
Who qualifies as a spouse under super and tax law?
For the purposes of SIS and taxation law, the spouse of a person includes:
- another person who is legally married to the person
- another person (whether of the same sex or a different sex) with whom the person is in a prescribed kind of relationship that is registered under a State or Territory law prescribed for the purposes of the Acts Interpretation Act 1901 (Cth), and
- another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.
The ‘prescribed relationship’ limb of the definition enables eligible couples to demonstrate their de facto status more easily by registering their relationship. This is relevant in a wide range of Commonwealth legislation that refers to the definition (or parts of the definition) of de facto partner in the Acts Interpretation Act 1901 (Cth).
What kinds of relationships can be registered?
- Vic: a registered domestic relationship as defined in the Relationships Act 2008 (Vic)
- Tas: a significant relationship as defined in the Relationships Act 2003 (Tas)
- ACT: a relationship as a couple between two adults who meet certain eligibility criteria for entry into a civil partnership in the Civil Partnerships Act 2008 (ACT)
- NSW: a relationship as defined in the Relationships Register Act 2010 (NSW)
- Qld: a relationship as a couple between two adults who meet certain eligibility criteria for entry into a registered relationship under the Relationships Act 2011 (Qld)
- SA: a relationship as a couple between two adults who meet certain eligibility criteria for entry into a registered relationship under the Relationships Register Act 2016 (SA).
WA and NT do not currently have relationship registers for these purposes.
What are the conditions for registering a relationship?
The registration rules vary between the States/Territory, but the following features are common to all:
- the parties must be aged 18 or more and in a couple relationship
- both same-sex and opposite-sex relationships can be registered, and
- registration can be revoked upon application or written notice by the parties or by court order and is automatically revoked upon death or marriage of either one of the parties.
Why register a couple relationship?
The key advantage of registering a relationship is that it provides certainty and conclusive proof that a person is another person’s de facto partner for a wide range of purposes. For example, it will assist superannuation trustees to more easily establish dependency status for super death benefit purposes. It is also relevant for a number of other purposes including social security, family assistance and aged care.