23Pension for spouses or de facto partners

#### 23 Pension for spouses or de facto partners 23 Pension for spouses or de facto partners > > (1) On the death of a former member who immediately before his or her death was receiving, or was entitled to receive, a pension under this Part, the spouse or de facto partner (not being a person who became the spouse or de facto partner of the former member after the former member became entitled to that pension) of the former member shall be entitled to an annual pension at the rate of— > > > > > (a) three-quarters of the pension that would have been payable from time to time to the former member but for his or her death or if the former member, pursuant to section 20, had converted part of his or her pension entitlement to a lump sum payment, three-quarters of the pension that would have been payable to the former member but for his or her death and if the former member had not so converted part of his or her pension entitlement, or > > > > > (b) forty-five per cent of current basic salary, > > > > according to whichever rate of pension calculated under paragraph (a) or (b) would have been greater at the date of the former member’s death. > > > (1A) On the death of a former member who, immediately before his or her death on or after the commencement of this subsection, was receiving or was entitled to receive a pension under this Part, an eligible spouse or de facto partner of the former member is entitled— > > > > > (a) if the former member and the eligible spouse or de facto partner had been married or living in the relationship for 3 years or more immediately before the death—to an annual pension calculated in accordance with subsection (1), or > > > > > (b) if the former member and the eligible spouse or de facto partner had been married or living in the relationship for less than 3 years immediately before the death—to an annual pension calculated in accordance with subsection (1), but reduced on a pro rata basis according to the proportion that the period of the marriage or relationship bears to 3 years. > > > (2) On the death of a member who has been entitled to salary for an aggregate period of 7 years or more, the spouse or de facto partner of the member shall be entitled to an annual pension at the rate of— > > > > > (a) three-quarters of the pension that would have been payable from time to time to the member but for his or her death if the member had ceased to be a member on the date of his or her death and been entitled to a pension under section 19 (1), or > > > > > (b) forty-five per cent of current basic salary, > > > > according to whichever rate of pension calculated under paragraph (a) or (b) would have been the greater at the date of the member’s death. > > > (3) On the death of a member who has been entitled to salary for an aggregate period of less than 7 years, the spouse or de facto partner of the member shall be entitled to an annual pension at the rate of forty-five per cent of current basic salary. > > > (3A) A pension to which the spouse or de facto partner of a former member or of a member is entitled under this section shall cease on the death of that spouse or de facto partner. > > > (4) For the purposes of subsections (1), (2) and (3), current basic salary means— > > > > > (a) where the member who has died last served in the Legislative Council—the salary payable from time to time to a member of the Legislative Council (other than a Minister of the Crown or a recognised office holder within the meaning of the [Parliamentary Remuneration Tribunal Act 1975](/view/pdf/asmade/act-1975-25) and other than a recognised office holder within the meaning of the [Parliamentary Remuneration Act 1989](/view/html/inforce/current/act-1989-160)) and expressed at an annual rate, or > > > > > (b) where the member who has died last served in the Legislative Assembly—the salary payable from time to time to a member of the Legislative Assembly (other than a Minister of the Crown or a recognised office holder within the meaning of the [Parliamentary Remuneration Tribunal Act 1975](/view/pdf/asmade/act-1975-25) and other than a recognised office holder within the meaning of the [Parliamentary Remuneration Act 1989](/view/html/inforce/current/act-1989-160)) and expressed at an annual rate. > > > (4A) For the purposes of subsection (1) a former member shall be deemed to have been entitled to receive a pension under this Part at any time if he or she would, but for the provisions of section 25 (2) or 26 (1), have been entitled to receive a pension under this Part at that time. > > > (5) For the purposes of subsection (1A)— > > > > eligible spouse or de facto partner of a former member means a person— > > > > > (a) who became the spouse or de facto partner of the former member after the former member became entitled to a pension, and > > > > > (b) who has or had in his or her marriage or relationship with the former member a child, being— > > > > > > > (i) a child of the eligible spouse or de facto partner and the former member who was, in the opinion of the trustees, wholly or substantially dependent on the former member at any time during the marriage or relationship, or > > > > > > > (ii) a child of the former member who was conceived before and born alive after the death of the former member. > > > (6) (Repealed) > > > (7) Where a spouse or de facto partner would, but for the provisions of this subsection, be entitled under this section to more than one pension, that spouse or de facto partner shall, subject to this Act, be entitled to the pension which is the higher or highest, or the equal higher or highest, of those pensions. > > > (8) Where but for this subsection a person entitled to a pension under this section by reason of being the spouse or de facto partner of a former member becomes entitled to a pension under section 19 in respect of service as a member, that person shall, subject to this Act, only be entitled to receive such one of those pensions as that person elects, by notice in writing served on the trustees within one month after becoming entitled to a pension as a former member, to receive. > > > (9) Notwithstanding anything contained in this Part, other than this subsection, where a former member has served in both the Legislative Council and the Legislative Assembly and the trustees are satisfied that the annual pension (in this subsection referred to as basic annual pension) of the spouse or de facto partner of that former member is less than the annual pension to which that spouse or de facto partner would have been entitled under this Part, other than this subsection, had that former member not served in the Legislative Council, the trustees may in their absolute discretion direct payment to that spouse or de facto partner of an annual pension, additional to her or his basic annual pension, of such amount as the trustees think fit, but so that the aggregate of the amount of the basic annual pension and the amount of the additional annual pension under this subsection does not exceed the annual pension that would have been payable to that spouse or de facto partner under this Part had that former member not served in the Legislative Council. > > > (10) Where a member dies before the commencement of the [Parliamentary Contributory Superannuation (Amendment) Act 1979](/view/pdf/asmade/act-1979-132), or a former member who had ceased to be a member before that commencement dies before the commencement of Schedule 1.4 \[5\] to the [Superannuation Legislation Amendment Act 1996](/view/pdf/asmade/act-1996-92)— > > > > > (a) a pension is not payable under this section to the widower of the member or former member, and > > > > > (b) the pension payable to the widow of the member or former member is the pension to which she was entitled under this section, as in force immediately before the commencement of the [Parliamentary Contributory Superannuation (Amendment) Act 1979](/view/pdf/asmade/act-1979-132). > > > (11) Where a former member who had ceased to be a member before the commencement of the [Parliamentary Contributory Superannuation (Amendment) Act 1979](/view/pdf/asmade/act-1979-132) dies on or after the commencement of Schedule 1.4 \[5\] to the [Superannuation Legislation Amendment Act 1996](/view/pdf/asmade/act-1996-92)— > > > > > (a) a pension is not payable under the preceding provisions of this section to the spouse or de facto partner of the former member, but > > > > > (b) a pension is payable to the spouse or de facto partner if the spouse or de facto partner became the spouse or de facto partner of the former member before the former member became entitled to a pension, being the pension to which a widow of the former member was or would have been entitled under this section, as in force immediately before the commencement of the [Parliamentary Contributory Superannuation (Amendment) Act 1979](/view/pdf/asmade/act-1979-132). > > > (12) If the trustees have made a determination under section 26D in relation to a benefit provided by subsection (1) (paragraph (a) excepted), (2) or (3), the amount of the benefit is reduced by the amount specified in the trustees’ determination. > > **s 23:** Am 1972 No 71, sec 2 (1) (d); 1975 No 67, secs 12 (b), 13 (c); 1979 No 132, Sch 1 (9); 1981 No 86, Sch 1 (7); 1989 No 160, Sch 3 (4); 1991 No 95, Sch 3 (4) (21), 1996 No 92, Sch 1.4 (5)–(13); 1997 No 149, Sch 1.2 \[11\]; 2002 No 110, Sch 4 \[12\] \[13\]; 2005 No 110, Sch 1 \[6\].