22.214.171.124 Determining living separately & apart
If a marriage or a registered relationship or a de facto relationship ceases to exist, the partners of that relationship are not treated as member of a couple (1.1.M.120).
A legally married couple or a couple in a registered relationship or a de facto couple are determined to be separated if they are living separately and apart on a permanent or indefinite basis.
Living separately & apart - general provisions
If a couple claim to be separated they must establish that:
- they are living apart either permanently or indefinitely, and
- there has been an estrangement or breakdown in their relationship.
Generally, a physical separation as well as an emotional separation between the couple is required.
Note: Living separately and apart should not generally be accepted if the couple are living apart solely because of ill health, employment and/or economic reasons. All other options should be explored before a determination is made that a couple are living separately and apart, e.g. refer to 126.96.36.199 Determining an illness separated couple.
Living separately & apart - one member of a couple institutionalised due to a severe & debilitating illness
Members of a couple may be considered to be living separate and apart where one member of a couple has entered a nursing home (or other approved institution) to reside there on a permanent or indefinite basis due to a severe and debilitating illness, e.g. Huntington's disease or advanced stages of Alzheimer's disease.
Member of a couple who have an illness such as Huntington's disease or advanced stages of Alzheimer's disease are usually no longer cognisant of their partner and are physically, mentally and emotionally incapable of participating in a member of a couple relationship. Therefore, they do not meet the overall 5 criteria that determine a member of a couple as per SSAct subsection 4(3).
The conclusion that a couple are living separately and apart where one member of the couple has been institutionalised should ONLY be reached if:
- the incapacity of the institutionalised partner is severe, debilitating, AND of a permanent nature (such as Huntington's disease, advances stages of Alzheimer's disease, etc), and
- the institutionalised partner is totally and permanently incapable of providing their partner with such things as companionship, comfort, physical, intellectual or emotional support.
The following factors do NOT necessarily invalidate living separately and apart merely because the partner who is not institutionalised:
- visits the other partner on a regular basis,
- provides financial support to the other partner, OR
- has not taken action to obtain a divorce.
Under the provisions of living separately and apart, the individuals are deemed to be single and paid a single rate of income support payment. The single income and assets test provisions will apply to the individuals assessed as living separately and apart.
Note: If the recipient entering care is considered to be living separately and apart and, regardless of whether the partner remains in the former principal home, the incapacitated person's share (as either tenant-in-common or joint tenants) of the principal home continues to be an exempt asset for up to 2 years, or longer if further exemptions are met. See 188.8.131.52 Exempting the principal home - care situations.
Example 1: Tanya and Glen are married and own a home together. Glen has advanced stages of Alzheimer's disease and must now move into a care situation. Due to Glen's specific type of neurological disorder, once he enters care Glen and Tanya could be entitled to be assessed as living separately and apart. If Glen and Tanya chose to be assessed as illness separated, Tanya's income of $80,000 per year would affect Glen's pension. As Tanya is now responsible for the mortgage she would find it difficult to assist Glen in paying for the care facility. If they were assessed as living separately and apart Tanya's income and assets would not be taken into consideration when assessing Glen's pension. The income tested fees of Glen's care residence would be based on his income and assets alone. After the 2 years exemption on Glen's former principal home, Glen's portion of the principal home would then be considered an asset for pension purposes and the higher non-homeowner asset threshold applies. Where the value of Glen's assets affects his rate of pension, he may wish to apply under the asset test hardship provisions (see 4.6.7).
Example 2: Bert and Elsie have been married for 60 years and are joint tenants of their marital home. Bert has been a permanent resident in high level residential aged care for over 2 years and is not cognisant of Elsie or his family. As a member of a couple, Bert's daily aged care income tested fees are based upon half of the combined income of Bert and Elsie as they are an illness separated couple.
If Bert and Elsie's relationship is considered to have ceased due to ill health and they went from illness separated to living separately and apart, Bert's daily aged care income tested fees would thereafter be based on his income alone.
As Bert no longer has a partner and has been in care for more than 2 years, his half share of the former principal home would now be counted as an asset for pension purposes unless another exemption was applicable, e.g. if either an accommodation charge or periodic accommodation bond payments were being paid by Bert to his aged care service provider and Bert was at the same time receiving rental income from the home. Whilst Bert would now have the benefit of the higher non-homeowner asset threshold for pension purposes, his rate of income support payment could be affected depending on his half share of the asset value of the former principal home. Where the value of Bert's assets affects his rate of pension, he may wish to apply under the asset test hardship provisions (see 4.6.7).
Note: As Bert and Elsie have no income apart from their pensions, and no assets apart from their principal home, Bert's rate of pension was not affected by their illness separated classification. Under illness separated and while Elsie remains in the former principal home, the home continues to be an exempt asset whilst the partner (Elsie) lives there. The 2 year exemptions only commence when the remaining partner later vacates the principal home to enter care or dies. Should Bert and Elsie remain on illness separated and not transfer to living separately and apart they may qualify for a higher rate of pension.
If a couple claim to be separated where one or both members of a couple has been institutionalised, they must establish that:
- they are living apart either permanently or indefinitely, e.g. by providing a letter from the nursing home or approved institution, and
- the illness is permanent, severe and debilitating by providing proof, such as supporting medical evidence stating the type and severity of illness.
Act reference: SSAct section 4(2) Member of a couple-general, section 4(3) Member of a couple-criteria for forming opinion about relationship, section 4(3A) The Secretary must not form the opinion that…