This note looks at the way in which forming a civil partnership affects rights to state, occupational and personal pensions and at the relevant provisions in the Marriage (Same Sex Couples) Act 2013Jump to full report >>
The Civil Partnership Act 2004 gave same sex couples the right to register as civil partners from 21 December 2005. The Marriage (Same Sex Couples) Act 2013 enabled same sex couples to marry. For the purposes of State Pension and occupational pension rights, the Act provided for same-sex married couples to be treated in the same way as civil partners.
When the legislation was before Parliament, a particular issue of debate was what this meant in terms of rights to survivors’ benefits, particularly those in ‘contracted-in’ occupational pension schemes. This is because an exception in the Equality Act 2010 provided that it was not discrimination because of sexual orientation to restrict access to a benefit that would be available to a person who was married or in a civil partnership in relation to rights accrued before 5 December 2005. The effect of this was that, where an occupational pension scheme provides survivors’ benefits to married couples, it also had to provide them to surviving civil partners, but only in respect of service from 5 December 2005.
When the 2013 Act was before Parliament, Opposition MPs and Peers tabled amendments proposing that the exception in the Equality Act should be lifted. The Government amended the Bill at Third Reading to require a review of survivor benefits for different groups in occupational pension schemes and the costs and other effects of eliminating differences. The review of survivor benefits in occupational pension schemes was published in June 2014. The Government has not yet responded to this. On 17 January 2019, it said it would do so when the assessment of the full implications of the Walker judgement was complete (PQ 208267).
On 12 July 2017, the Supreme Court allowed the appeal of Mr Walker, who had argued that his pension scheme should provide equal pension benefits for his partner, based on service before December 2005. It made a declaration that:
Having reviewed the judgment, the Government decided that the implication for all public service pension schemes was that:
[…] survivors of registered civil partnerships or same-sex marriages should be provided with benefits equal to those that the scheme member would have left to an opposite sex surviving spouse. The Government has therefore decided that survivors of registered civil partneships or same-sex marriages will be provided with benefits that replicate the benefits provided to widows. These changes will be implemented in LGPS as though they had applied from the respective dates that the civil partnerships and same-sex marriages were implemented. (CLG, response to consultation, December 2018)
It had decided not to equalise the treatment of widows and widowers at this time. It had consulted on this in the review of survivor benefits in Occupational Pension Schemes in 2014 and would respond on this matter separately and in due course.
Occupational pension provision for unmarried opposite sex partners is covered in CBP-06348 Occupational pensions – survivors’ benefits for cohabitants (January 2019).
Commons Briefing papers SN03035
Author: Djuna Thurley