Same Sex: Submissions

I am Commonwealth Employee nearing 55 years of age and am currently a member of the Commonwealth Superannuation Scheme.  I am have been employed by the Commonwealth Government for 19 years.

My spouse and I have been living in a marital type relationship for more than 4 years.  In March of this year we created a legal and binding relationship by signing Civil Union papers in New Zealand.  My spouse is currently dependant on me for financial support.

On enquiry recently to Comsuper, I was advised that pursuant to the Superannuation Act 1976, benefits are only payable to an eligible beneficiary – eg., ‘eligible spouse’;  and that an

… “eligible spouse is broadly defined as a person who

• is of the opposite sex to that of the member;  and
• was living in a marital type relationship for a continuous period of three years or more with the member at the time of death.”

The advice went on to state that

“The Board of Trustees may declare a person an eligible spouse if that person was living in a marital type relationship for a continuous period of less than three years.  In making such a decision the Board would have to regard any relevant evidence, which could include a marriage certificate, children born from the relationship, financial dependence, and jointly owned property that was the usual place of residence.”

It appears that in the case of my death my spouse will not be eligible for any benefits from the Scheme, even though my spouse and I

• have been living in a marital type relationship for more than three years;  and
• have recently created a legal and binding relationship between us.  The production of the NZ Civil Union Certificate should prove that my spouse and I are living in a ‘marital type relationship’, even though the Civil Union may not (currently) be recognised at law in Australia.

Because my relationship is not recognised under the provisions of the superannuation scheme, under that scheme, I am treated as a single person.  At my death the pension payments would cease and any remaining CSS benefit would be payable to my deceased estate.  This denies my spouse any recognition under the superannuation scheme and we have had to make other arrangements in order to make provision for my spouse in the case of my death.

State Law – South Australia Stamp duty

In 2000 I separated from my same-sex spouse of nearly 20 years.  We had previously owned a house property together and at the time of separation, jointly owned two vehicles and sundry other assets.

On re-registering both vehicles into separate names, I completed forms for the SA Stamp Duties Office requiring a statement regarding my prior relationship and requesting an exemption of stamp duty on the transfers.  The result was a refusal of exemption as my prior relationship did not fit the Stamp Duties Act definition of ‘spouse’.  Full stamp duty on the transfer of ownership on both vehicles was payable.  Had we been an opposite-sex couple, the transfer from joint to sole ownership on both vehicles, as a result of separation, would have been exempted under South Australian law.

Sale of the house property had occurred prior to separation.  However, I am aware that had I or my previous spouse purchased the other party’s interest in the property, the purchaser would have been charged the full amount of stamp duty on the transfer.  No exemption would have been available, as is the case for opposite-sex couples.

Division of other property, as a same-sex couple, was left to be sorted out between ourselves.  If there had been any major dispute, any legal recourse would have been through expensive legal channels and/or in a civil court.  Access to any dispute resolution through the family law system would have been denied us, as we did not fit the definition of ‘spouse’.

Suggestions

• Enhance the definition of ‘spouse’ wherever it may be found
• Support the full legal recognition of same-sex relationships.

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