Parliament has passed the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 (Act). The Act amends 14 different Acts in relation to the Commonwealth civilian and military (defined benefits) superannuation schemes, judicial and statutory legal officer pension schemes and the Governor-General's pension scheme. The Act has retrospective effect from 1 July 2008.

Proposed change to the definition of 'spouse'

The Act changes the definition of 'spouse' in the Superannuation Industry (Supervision) Act 1993 (SIS Act) by replacing the words 'as husband or wife of the person' with 'in a relationship as a couple (whether the persons are the same sex or different sexes)'. This proposal will mean that 'spouse' will include a person who is in a relationship as a couple with another person irrespective of their gender.

Change to the definition of 'child'

The Act also proposes to repeal and replace the definition of 'child' by adopting the following:

'Child' in relation to a person includes:

  1. An adopted child, a step-child and an ex-nuptial child of the person; and a child of the previous spouse.
  2. If, at any time, the person was in a relationship as a couple with another person (whether the persons are the same sex/different sexes) - a child who is the product of the person's relationship with that other person.
  3. Someone who is a child of the person within the meaning of the Family Law Act 1975 (Cth). This in section 4(1) of the Family Law Act means a 'child' as provided in Division I of Part VII.

Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (GLR Act) makes corresponding amendments to the tax legislation to introduce the Same Sex Spouse concept for superannuation tax treatment.

What do superannuation trustees need to do?

If you are a superannuation trustee you will need to consider amendments to the superannuation fund trust deed, changes to your procedures in relation to the payment of death benefits and reviewing your disclosure documents and other communication to members.

The GLR Act will also affect the trustee's decision making in relation to the payment of death benefits to financial dependants of a new class of beneficiaries. While most beneficiaries will already meet an existing SIS definition, it may not always be the case. There are also the implications of the retrospective nature of the GLR Act to consider.

You may also need to consult your administrator about new procedures and changes to documentation processes that are in place for death benefits and contribution splitting for the new definition of spouse.

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