Family Law

The Commonwealth Ombudsman, Professor John McMillan, has released a report on policy guidelines for assessing marriage-like relationships under social security law. The Marriage-like Relationships Report (the Report) was drafted in response to an Ombudsman investigation into the difficulties faced by decision makers in evaluating marriage-like relationships. According to The Report, there are inconsistencies in the social security industry as to what constitutes a marriage-like relationship, and decisions about whether or not a person is in a marriage-like relationship have been a consistent source of complaints to the Commonwealth Ombudsman.

What is a marriage-like relationship?

Assessing a person's financial entitlement under Social Security Act 1991 (the Act) is significantly influenced by the question of whether the said person is part of a couple.  Under s 4(2) of the Act, a couple consists of those who are legally married and are not separated or those who are in a marriage-like relationship. Some social security payments, such as the parenting payment (single) or the widow allowance, are only available to those who are not in a marriage-like relationship. In determining qualification for other social security payments, the income and assets of both members of a couple will be taken into account when assessing whether a person qualifies for a social security payment and the amount of that payment. Under social security law, half of the income and assets of a person's partner are treated as being those of the person and therefore can preclude or reduce their social security entitlement[1].

As noted previously, there can be great difficulty in assessing whether a person can be considered to belong to a marriage-like relationship. However, the increasing existence of couples living together before marriage has necessitated the existence of the marriage-like relationship category of couple in social security law. According to Australian Bureau of Statistics (ABS) statistics, the marriage rate of Australians has been declining since the 1970's whilst the numbers of de-facto relationships have increased[2]. The Ombudsman's report notes that the term in a marriage-like relationship is used to reflect the expectation of the legislature, and society generally, that those people in a relationship akin to marriage should not be advantaged over those people who are legally married[3].

Social security law does not include a definition of what constitutes a marriage-like relationship but s 4(3) of the Social Security Act 1991 (Cth) does prescribe criteria for the consideration of whether someone is in a marriage-like relationship. This criteria includes:

• the financial aspects of the relationship;
• the nature of the household;
• the social aspects of the relationship;
• any sexual relationship between the people;
• the nature of the people's commitment to each other.

It should be noted that courts and tribunals have held that no single criteria is determinative and all the circumstances of the relationship must be considered before making a decision. Therefore, it can be seen that the assessment of whether a person is in a marriage-like relationship is very discretionary. This in turn has resulted at times in a lack of consistency.

The Department of Families, Community Services and Indigenous Affairs (FaCSIA) reacted to the instigation of the Ombudsman's investigation into policy guidelines by reviewing their own guidelines relating to marriage-like relationship decisions. Consequently, FaCSIA made alterations to the information available to Centrelink assessors to support them in making decisions, which has resulted in greatly improving the potential for more consistent decision making.  The Ombudsman's investigation and consequent report focussed on additional improvements that could be made to address the issues made by complaints and to create greater consistency in decision-making.

The Ombudsman's report made nine recommendations to improve policy guidelines for assessing marriage-like relationships under Australian social security law. These recommendations include amendments to:

• convey the importance of individually considering both the person and the couple, and to ensure that decisions are not improperly fettered by rigid policy guidelines
• address procedural fairness  advise customers in writing of a proposed decision (including detailed reasons) and provide an opportunity to respond
• clarify that while it would be generally relevant to seek evidence from an alleged partner, there may be circumstances  such as domestic violence  where it is not appropriate to do so
• clarify that it is not mandatory to obtain evidence from independent professionals to reach a decision that a person in not a member of a couple
• ensure that consideration is given to continuing a payment pending the outcome of any review of a person's circumstances.

The full report is available at the Commonwealth Ombudsman's website (www.comb.gov.au).