2.2.5.40 Transgender

Note: As from 1 July 2009 for social security purposes, a person's sex is no longer relevant when determining whether a person is in a member of a couple relationship for social security purposes.

Definition: member of a couple

A person is a member of a couple under the SSAct if they are living with another person as their partner, where both people are over the age of consent (applicable to the relevant state or territory), are living together on a permanent or indefinite basis, are not in a prohibited relationship (subsections 4(12) and 4(13)), and are either:

• legally married (2.2.5.14), or
• in a registered relationship (whether of the same sex or a different sex) (2.2.5.13), or
• in a de facto relationship (whether of the same sex or a different sex) (2.2.5.10).

In determining if a person is in a member of a couple relationship, consideration is given to the following 5 factors:

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

Act reference: SSAct section 4(12) and section 4(13) Prohibited relationship

Sex affirmation surgery AFTER marriage

A person's sex, for the purpose of the Marriage Act 1961 is determined at the date of marriage, therefore sex affirmation surgery after the date of marriage does not invalidate the marriage. It is possible for members of a couple to still be regarded as members of a couple for the purposes of SSAct section 4 even when one of the members has had sex affirmation surgery after the marriage. This is because at the date of marriage they were a male and a female.

A couple who are legally married and not living separately and apart from one another on a permanent or indefinite basis (SSAct paragraph 4(2)(a)), despite one of the members of the couple having undergone sex affirmation surgery, can be assessed in the same way as any other couple. They will be recognised as a same-sex de facto couple.

Act reference: SSAct section 4(2) Member of a couple-general, section 4(3A) The Secretary must not form the opinion..., section 24 Person may be treated as not being a member of a couple (subsection 4(2))

Policy reference: SS Guide 2.2.2 Verifying Personal Details, 2.2.5.10 Determining a De Facto Relationship, 2.2.5.20 Determining Living Separately & Apart, 2.2.5.50 Discretion to Treat a Person as Not Being a Member of a Couple for a Special Reason

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Last reviewed: 1 July 2009