APRA – The Australian Prudential Regulatory Authority – which regulates the industry, said:
APRA has published guidance to superannuation trustees on the payment of death benefits in its prudential practice guide SPG 280 – Payment standards for regulated superannuation funds and approved deposit funds. In particular, you may be interested in the section ‘Death benefit payments’ on page 13.
A draft updated version of SPG 280 is also available from APRA’s website at the following URL: www.apra.gov.au/Super/Pages/Prudential-Practice-Guides-for-Superannuation-May-2013.aspx.
I note that Section 10 of the Superannuation Industry (Supervision) Act 1993 states:
‘spouse of a person includes:
(a) another person (whether of the same sex or a different sex) with whom the person is in a relationship that 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; and
(b) another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.’
It should be noted, however, that all this ‘guidance’ is just that: it is not binding. For example, the ‘guidance’ says that funds ought to have in place a mechanism to inform members when their binding nomination of a beneficiary is about to lapse:
It is good practice for the trustee to carefully consider which death benefit arrangements are suitable to offer through the fund. Where the fund has adopted binding nominations, this would include establishing a process to identify which members have made a nomination and a procedure to notify relevant members at the appropriate time that their nomination is about to lapse, explaining the consequences of its lapsing and what steps members can take to renew or alter their nomination.
However, in practice it appears that few adopt this ‘good practice’. And it’s very important that they should. Since automatic reversionary benefits are appear not to be available to same sex couples, a binding declaration is the only way to ensure your benefits go where you want them to go. In all other instances, e.g., non-binding nominations, the trustees have full control over who gets your money.
A binding nomination – which last only for 3 years – has to be signed by you, and your signature witnessed by two people who are not beneficiaries. You have to make a new one every three years.