VCAT considers the definition of ‘domestic partners’

  • Newsletter Article
  • Published 29.10.2021
D'Arcy v Emergency Services Superannuation Board (Review and Regulation) (VCAT 2021)

Key Takeaways

In this decision, the VCAT considered whether the applicant and her deceased brother could, at the time of his death, be considered ‘domestic partners’ under the State Superannuation Act 1988 (Vic) (SS Act) such that the applicant would qualify for a ‘partner pension’.

The decision examines the interplay and development of legislation addressing domestic partner and independency relationships and in particular the phrase ‘living as a couple on a genuine domestic basis’ and concludes that siblings are not capable of being recognised as ‘domestic partners’ without a significant shift in the law.

Brief Facts

The deceased was a member of an Emergency Services Scheme (the Scheme). This membership allowed his partner to apply for a partner pension under s37(1) of the SS Act.  

To be entitled to a partner pension under the SS Act, the person applying must be a ‘spouse’ or ‘domestic partner’ of the deceased member. 

A claim for the partner pension was lodged by the deceased member’s sister (the Applicant) in November 2019. The Applicant considered that although she and the deceased were related by family and therefore not spouses or in a romantic relationship, for all practical purposes they lived together and shared expenses and therefore the SS Act could entitle her to a partner pension. 

The Board of the Scheme determined that the partner pension was not payable to the Applicant on the basis that:

  • She did not satisfy the definition of ‘partner’ under s3(1) of the SS Act.
  • She did not satisfy the definition of ‘registered domestic relationship’ under s3(8) of the SS Act. 
  • She did not satisfy the definition of ‘domestic partner’ under s3(8) of the SS Act.
  • She did not satisfy the definition of ‘living as a couple on a genuine domestic basis’ under s3(8) of the SS Act.
  • The Applicant and the deceased member were siblings and a recognised domestic relationship or couple living together on a genuine domestic basis must not be between persons who are related by family. 

The Applicant applied to VCAT to review the Board’s decision. 

VCAT affirmed the Board’s decision and found that siblings cannot be considered domestic partners and the Applicant was not entitled to the partner pension of her deceased brother.

Decision

In affirming the Board’s decision, VCAT found that:

  • The definition of ‘domestic partner’ has not been a static one, but rather has been responsive to social change and adaptation in order to reduce discrimination against persons in same-sex relationships. 
  • When considering the SS Act, the Relationships Act 2008 (Vic) and the amendments made to the concept of domestic partners by the Statute Law Amendment (Relationship Act) 2001 (Vic) to the effect that siblings cannot be domestic partners of each other, VCAT noted that there would have had to have been very clear and express language in the statute had such a wide change been intended.
  • Although the concept of ‘domestic partner’ is not fixed and can be applied to a couple by having regard to all of the circumstances of their relationship and a number of commonly applied factors, siblings cannot be domestic partners of each other. 
  • The phrase ‘living as a couple on a genuine domestic basis’ is not perfect and may not reflect the diversity of relationships which were traditionally defined by reference to romance and intimacy. However, when considering this phrase against common law cases, the phrase was intended and continues to be understood to refer to ‘marriage like relationships between two people’
  • VCAT disagreed with the Applicant’s submission that because the Board had accepted the Applicant and her late brother were in an interdependency relationship, she was entitled to the pension. VCAT noted that even if the concept of an interdependency relationship could be applied to the Applicant, there is no room for it to be considered because under s37 of the SS Act, the benefit in issue – a partner pension – is only payable to a ‘domestic partner’ of a member of the Scheme. 

Implications 

The decision of the Tribunal is of clear significance to trustees for its obvious implications for sibling relationships, in an area of the law largely silent prior to this decision. Notably, even in the face of legislative change, siblings are not capable of being recognised as ‘domestic partners’ on the current state of the law.

The decision also highlights that while the phrase ‘living as a couple on a genuine domestic basis’ does not necessarily reflect the diversity of relationships, the position remains that of requiring something greater than interdependency to be considered ‘domestic partners’.