The Same-Sex Relationships (Equal Treatment in Commonwealth Laws-Superannuation) Act 2008 is the first of three bills which received Royal Assent on 4 December 2008 in part of a package of legislation to ensure equal treatment under commonwealth laws for same-sex couples. The Act primarily allows inheritance rights to same sex spouses rather than superannuation payments previously only being granted to children.
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws— General Law Reform) Bill 2008 received Royal Assent on 9 December 2008 and presently the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 which amends the Family Law Act 1975 to provide for opposite-sex and same-sex de facto couples to essentially be granted many of the same rights under law as married couples, is awaiting Royal Assent.
Collectively, these bills are designed to remove significant areas of discrimination against gay men, lesbians and same-sex couples in areas of tax, social security, health and employment, however they also affect the situation of opposite- sex unmarried couples in some respects.
Impact on tax treatment of Temporary Residents
For the purposes of these bills, a person is said to be in a de facto relationship with another person if they have a relationship as a couple living together on a genuine domestic basis but are not married or related to each other. So it thereby includes same-sex domestic and sexual relationships.
This is relevant to employers because the bill creates a new definition of 'spouse' which will be used in the Income Tax Assessment Act - which can affect the tax situation of your temporary visa holders.
If your 457 visa holder has a spouse that is an Australian resident within the meaning of the Social Security Act 1991, that individual will be treated as an Australian tax resident and subject to tax on their worldwide income and gains.
At present the new definition of spouse is broad and includes "a party to a de facto relationship". As the definition of spouse now includes de facto couples and same sex partners, more temporary residents may automatically become Australian residents for tax purposes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
