38Eligibility for partner service pension

#### 38 Eligibility for partner service pension (1) Subject to this section, a person is eligible for a partner service pension if the person: (a) is a person: (i) who is a member of a couple; and (ii) whose partner is a veteran who is receiving an age service pension or invalidity service pension, or who would be receiving such a pension if not for the operation of one or more disqualifying provisions; or (aa) is a person: (i) who is a member of a couple; and (ii) whose partner is a veteran who has rendered qualifying service; and (iii) who is qualified for an age pension under the Social Security Act; or (b) is a person in relation to whom the following apply: (i) subsection (1AA) applies to the person; (ii) the veteran is receiving an age service pension or an invalidity service pension, or would be receiving such a pension if not for the operation of one or more disqualifying provisions; or (c) is a person in relation to whom the following apply: (i) the person is an eligible person in relation to a veteran who has died (see subsection (1AB)); (ia) the veteran, immediately before his or her death, was receiving an age service pension or an invalidity service pension, or would have been receiving such a pension if not for the operation of one or more disqualifying provisions; (ii) the person was receiving a partner service pension or a social security pension immediately before the veteran’s death; or (d) is a person in relation to whom the following apply: (i) the person is an eligible person in relation to a veteran who has died (see subsection (1AB)); (ii) the person had, before the veteran’s death, made a claim for a partner service pension which had not been determined at the date of the death; (iii) the veteran: (A) was, immediately before his or her death, receiving an age service pension or invalidity service pension; or (B) had, before his or her death, made a claim for an age service pension or invalidity service pension which had not been determined at the date of the death but which the Commission determines would have been granted if the veteran had not died; or (e) is a person in relation to whom the following apply: (i) the person is an eligible person in relation to a veteran who has died (see subsection (1AB)) and who has rendered qualifying service; (ii) the person is qualified for an age pension under the Social Security Act; or (f) is a person: (i) who is a member of a couple; and (ii) whose partner is a veteran who is registered as a member of the pension bonus scheme (see Part IIIAB); or (g) is a person in relation to whom the following apply: (i) subsection (1AA) applies to the person; (ii) the veteran is registered as a member of the pension bonus scheme (see Part IIIAB); or (h) is a person in relation to whom the following apply: (i) the person is an eligible person in relation to a veteran who has died (see subsection (1AB)); (ii) the veteran, immediately before his or her death, was registered as a member of the pension bonus scheme (see Part IIIAB), was receiving an age service pension or an invalidity service pension, or would have been receiving such a pension if not for the operation of one or more disqualifying provisions; (iii) the person, immediately before the veteran’s death, was registered as a member of the pension bonus scheme (see Part IIIAB) or of the corresponding scheme under Part 2.2A of the Social Security Act or was receiving a partner service pension or a social security pension; or (i) is a person in relation to whom the following apply: (i) the person is an eligible person in relation to a veteran who has died (see subsection (1AB)); (ii) the person had, before the veteran’s death, made a claim for a partner service pension which had not been determined at the date of the death; (iii) the veteran was, immediately before his or her death, registered as a member of the pension bonus scheme (see Part IIIAB). (1AA) This subsection applies to a person if: (a) the person is the non‑illness separated spouse of a veteran; or (b) the following apply: (i) a relationship between the person and a veteran (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; (ii) the person and the veteran have separated and the person is living separately and apart from the veteran on a permanent basis; (iii) the separation has not resulted in a determination under subsection 5R(5); or (c) the following apply: (i) the person and a veteran were, in the Commission’s opinion (formed as mentioned in section 11A), in a de facto relationship; (ii) the person and the veteran have separated and the person is living separately and apart from the veteran on a permanent basis; (iii) the separation has not resulted in a determination under subsection 5R(5); (iv) the person and the veteran are not within a prohibited relationship; or (d) the following apply: (i) the person becomes divorced from a veteran; (ii) immediately before the divorce, paragraph (a) applied in relation to the person and the veteran; or (e) the following apply: (i) a relationship, described in subparagraph (b)(i), between the person and a veteran ceases to be registered under a law of the State or Territory concerned; (ii) immediately before the cessation, paragraph (b) applied in relation to the person and the veteran. (1AB) For the purposes of this section, a person is an eligible person in relation to a veteran who has died if: (a) the person is the widow or widower of the veteran; or (b) the following apply: (i) immediately before the veteran died, a relationship between the person and the veteran (whether of the same sex or a different sex) was registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; (ii) immediately before the veteran died, the person was living separately and apart from the veteran on a permanent basis; (iii) the person has not been a member of a couple at any time on or after the first day on which the person was living separately and apart from the veteran on a permanent basis and before the veteran’s death; or (c) the following apply: (i) at any time before the veteran’s death, the person and the veteran were, in the Commission’s opinion (formed as mentioned in section 11A), in a de facto relationship; (ii) immediately before the veteran died, the person was living separately and apart from the veteran on a permanent basis; (iii) immediately before the veteran died, the person and the veteran were not within a prohibited relationship; (iv) the person has not been a member of a couple at any time on or after the first day on which the person was living separately and apart from the veteran on a permanent basis and before the veteran’s death; or (d) the following apply: (i) at any time before the veteran’s death, the person became divorced from the veteran; (ii) immediately before the divorce, paragraph (1AA)(a) applied in relation to the person and the veteran; (iii) the person has not been a member of a couple at any time on or after the first day on which the person was living separately and apart from the veteran on a permanent basis and before the veteran’s death; or (e) the following apply: (i) at any time before the veteran’s death, a relationship, described in subparagraph (b)(i), between the person and the veteran ceased to be registered under a law of the State or Territory concerned; (ii) immediately before the cessation, paragraph (1AA)(b) applied in relation to the person and the veteran; (iii) the person has not been a member of a couple at any time on or after the first day on which the person was living separately and apart from the veteran on a permanent basis and before the veteran’s death. (1A) For the purposes of subsection (1), a disqualifying provision is a section of this Part or of Part IIIB or IIIC that has the effect that an age service pension or an invalidity service pension that would otherwise be payable to a person is not, or ceases to be, payable. (1B) Subject to subsections (1C) and (1D), a person is not eligible for a partner service pension under subsection (1) unless the person: (a) has a dependent child when he or she makes a claim for the pension; or (b) if subsection (1BA) applies in relation to the person—has reached 50 years of age; or (c) has reached qualifying age. > Note: For qualifying age see section 5Q. (1BA) This subsection applies in relation to a person if: (a) paragraph (1)(a) or (f) applies in relation to the person; and (b) one of the following applies: (i) the veteran concerned is a veteran to whom subsection 22(4) or section 23 or 25 applies; (ii) the veteran concerned is a veteran to whom section 22 applies who is in receipt of a pension the rate of which has been increased because the pension is in respect of an incapacity described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1); (iii) the veteran concerned suffers an impairment (within the meaning of the MRCA) and the Military Rehabilitation and Compensation Commission has determined under Part 2 of Chapter 4 of the MRCA that the impairment constitutes at least 80 impairment points (within the meaning of the MRCA). (1C) Subsection (1B) does not apply to a person: (a) whose claim for a partner service pension had not been determined before 1 October 1995 but who was eligible, at the date of the claim, for the pension; or (b) who was determined by the Commission, before 1 October 1995, to be eligible for a partner service pension; unless the person’s pension is or has been cancelled for any reason. (1D) Subsection (1B) does not apply to a person whose partner: (a) is a veteran to whom section 24 applies; or (b) is receiving, or eligible to receive, a Special Rate Disability Pension under Part 6 of Chapter 4 of the MRCA. > Note: A person is still eligible to receive a Special Rate Disability Pension even if the amount of the pension is totally offset under section 204 of the MRCA. (2) If a veteran: (a) makes a claim for age service pension or invalidity service pension at a time when the veteran is receiving age pension or disability support pension under the Social Security Act; and (b) the veteran dies before the claim is determined; the Commission is, for the purpose of the determination under sub‑subparagraph (1)(d)(iii)(B), to disregard the fact that the veteran was receiving social security pension at the time of the claim. (2A) A person’s eligibility under paragraph (1)(b), (c), (d), (e), (g), (h) or (i) ceases if the person becomes a member of a couple. > Note: The person may become eligible for partner service pension under paragraph (1)(a), (aa) or (f). (2AB) A person’s eligibility under paragraph (1)(b) or (g) ceases at the end of the period of 12 months beginning on the first day on which the person was living separately and apart from the veteran concerned on a permanent basis. (2AC) A person’s eligibility under paragraph (1)(b) or (g) does not cease under subsection (2AB) if: (a) the person has reached pension age; or (b) the circumstances specified under subsection (2AD) exist in relation to the person. > Note: For pension age see section 5Q. (2AD) The Commission may, by legislative instrument, specify circumstances for the purposes of paragraph (2AC)(b). (4) If: (a) a person lodges a proper claim for a partner service pension before meeting the eligibility requirements referred to in subsection (1); and (b) the person ceases to be an Australian resident after lodging the claim and before the claim is determined; the person is not eligible for partner service pension unless: (c) the day on which the person met all the eligibility requirements; and (d) the day from which partner service pension would, if the claim were granted, be payable; are earlier than the day on which the person ceased to be an Australian resident.