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Key decisions

  • Case 724323 (concerning Commonwealth Superannuation Corporation)
  • In the Estate of Whitnall [2022] NTSC 20
  • Benz v Armstrong; Benz v Armstrong; Benz v Armstrong [2022] NSWSC 534
  • White v Tait [2022] NSWSC 460
  • Lim v Lim [2022] NSWSC 454

Eligibility for spousal pension

The complainant was married to the member at the date of his death in 2018. Under the fund rules for the deceased member’s superannuation fund, the ‘spouse’ of a deceased pensioner is entitled to a pension from the fund. The fund rules defined ‘spouse’ as a person who was in a marital or couple relationship with the deceased member, and that relationship was defined to include ‘… a relationship… under which they had been living with each other as husband and wife, spouses, or partners on a permanent and bone fide domestic basis for a continuous period of at least 3 years up to that time’.

The trustee determined that the complainant was not entitled to a pension as she was not in a marital or couple relationship with the member at the date of his death as she had not lived in the same residence with him for eight years before his death. Contemporaneous records from 2011 disclosed that the member and the complainant separated after they had disagreements. The complainant stated that living with the member in the same residence became untenable. However, the move was jointly planned. After their separation, the complainant regularly visited the member, cooked and brought him meals, managed his bills, brought his dogs to visit, and managed his care. The member moved to an aged care facility in 2014 to assist with management of his degenerative health conditions and the complainant’s support continued thereafter.

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