Different residences preserve relationship

JACK and Jill have been married for 40 years.

Ten years ago, Jack moves out of the matrimonial home and into separate accommodation.

Five years ago, Jack is diagnosed with Alzheimer’s disease and moves into an aged-care facility.

When Jack passes-away, he is receiving a pension from his superannuation fund.

Jill makes an application to the superannuation fund to receive Jack’s pension by way of a “reversionary benefit” on the basis that she is Jack’s spouse.

The superannuation fund declines Jill’s application, stating that because they were not living together “on a permanent and bona fide domestic basis” at the date of Jack’s death, Jill no longer satisfies the definition of “spouse”.

Jill makes a complaint to the Australian Financial Complaints Authority (AFCA) and a review of the superannuation fund’s decision is conducted.

AFCA states that the formal act of separation will be conclusive that the relationship of “living together” has come to an end even if the legal status of marriage continues to exist.

However, AFCA rejects the argument that the expression “living together” requires the parties to live in the same household.

Jill argues that living with Jack became untenable due to behaviour attributed to the early stages of his disease.

She says that Jack’s initial move into separate accommodation was made with a view to providing the parties with personal space and was in fact positive for their relationship.

Jill says that despite living in separate residences, she continued to visit Jack regularly, cooked and bought him meals.

AFCA states that the choice to live in different residences was done to preserve the relationship and after reviewing the evidence from a variety of sources, is satisfied that Jack and Jill were living with each other as husband and wife at the date of death.

AFCA decides that the superannuation fund’s decision should be set aside and that Jill is entitled to the reversionary spousal pension plus interest to remedy the delays in the commencement of the pension benefits.

Email Manny Wood at manny@tblaw.net.au or call him on (02) 66 487 487.