Social Security Act 1991 (Cth) - Effect on Couples in De-Facto Relationships


De-Facto Relationships

Social Security Act 1991 (Cth)


[P] Social Security Act 1991 (Cth), couples, de-facto relations, effect on

> "Cases of the present description present considerable difficulties especially for the parties themselves. In the matter of Kingston (1985) 8 ALN N315 the Tribunal was required to consider the circumstances in which an 80-year-old pensioner was living for some time with his 75-year-old housekeeper. The Tribunal said: “Whilst there may well be many ‘housekeeping’ contracts or arrangements which develop into a man and wife relationship it certainly does not follow that all such arrangements acquire that quality merely by reason of their comparative permanence or the strength of the friendships developed. Before such a relationship is converted there must be, as the Tribunal recently observed, some kind of ‘spark to ignite the tinder of cohabitation into the fire of a quasi-marriage relationship’.” The present case bears strong resemblance in many respects to the facts in Kingston, but it is to be distinguished by reason of several factors, namely the early mutual dependence of the parties and the emotional warmth which has developed between them. Their uninhibited sharing of the same bed on a “no sex” basis suggests the ignition of rather damp tinder, but sufficient to characterise the relationship as a quasi-marriage one. It is certainly permanent and exclusive and its strongest feature is a high degree of mutual dependence. I am satisfied that the absence of any sexual relationship is perfectly understandable and does not preclude a finding that the parties should be treated for the purpose of the Act in the same way as a married couple. Accordingly the decisions under review will be affirmed.": Re Belkin and Boske and Secretary, Department of Social Security (1986) 12 ALD 123, 125. 

> relationships of housekeeper and master - born of financial economy - relationship of services converted to personal relationship: "In the course of its reasons for decision, the Tribunal rejected the respondent's submission that K and N had demonstrated, through their earlier behaviour, that they believed that their relationship was like one of man and wife, and continued as follows: The respondent was really left to rely on the undoubted quality of permanence which is now a notable feature of the relationship in question. Moreover it was said that the willingness of each to physically care for the other in sickness and old age was indicative of the kind of emotional tie that is frequently present in an actual marriage situation. There have been many decisions of this Tribunal which have considered the provisions of the Act now in question. The applicant referred most aptly to the following passage in the Fedeal Court decision of Fitzgerald J in Lynam v Director-General of Social Security (1985) 6 ALN N28 ; 52 ALR 128 at 131: ‘Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of a relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.’ That same extract was recently cited by Deputy President Layton in Re Wilson (unreported, 6 August 1985, No S85/40). The facts of that case were not unlike the present including in particular the ‘lack of romantic and sexual contact’. The Deputy President said: ‘Their relationship is one born of financial economy so that two individual incomes (when the applicant has one) can be used to the greatest advantage and provide security for each of them for the future. They have not made a commitment to live together for its own sake, nor are they continuing to live together because of their personal relationship, rather they have a commitment to a joint financial venture and their friendliness and companionship merely accompanies that venture. Each views the commitment as being one to himself or herself for the individual and mutual future security of both.’ Whilst there may well be many ‘housekeeping’ contracts or arrangements which develop into a man and wife relationship it certainly does not follow that all such arrangements acquire that quality merely by reason of their comparative permanence or the strength of the friendships developed. Before such a relationship is converted there must be, as the Tribunal recently observed, some kind of ‘spark to ignite the tinder of cohabitation into the fire of a quasi-marriage relationship’: Smith (1985) 7 ALN N279 In the present case an arrangement which began as one of financial convenience has now developed into an arrangement for mutual support to the best of the physical and financial abilities of each party, but there is no evidence to justify a conclusion that there is a quasi-marriage relationship.": Re Kingston and Secretary, Department of Social Security (1985) 8 ALN N315.