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Pensions: civil partnerships and same sex marriages

Published Friday, April 27, 2018

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 2013

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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 (TPS, Q&A Survivors’ benefits in the Teachers’ Pension Scheme, April 2018).

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:

  1. paragraph 18 of Schedule 9 of the Equality Act 2010 is incompatible with EU law and must be disapplied, and
  2. Mr Walker’s husband is entitled on his death to a spouse’s pension, provided that they remain married. (Press summary, Walker v Innospec, 12 July 2017).

The Government said it was reviewing the implications of the Supreme Court judgement “in detail and would respond appropriately in due course”(PQHL761 25 July 2017).

On 21 March 2018, it wrote to public service pension representatives about the implications of the judgment. (PQ 135229, 19 April 2018). The Teachers’ Pension Scheme website explains that:

Following the Government’s consideration of the implications for public service pension schemes of the Walker v Innospec case, regulatory changes will be introduced to provide that:

  • survivors of same-sex marriages and civil partnerships are treated in the same way as widows of opposite sex marriages (survivor benefits in relation to service from 1 April 1972 or 6 April 1978 if the marriage was after the last day pensionable service); and
  • the change applies from the date civil partnerships and same-sex marriages were implemented (TPS, Survivors’ benefits in the Teachers’ Pension Scheme April 2018).

The Government is not extending the same treatment to widowers (male survivors of opposite sex marriages) and unmarried partners. In this respect, its position remains that:

[…] benefit entitlements should generally be determined in light of the rules applicable at the time the member served. To do otherwise would make Defined Benefit pension schemes unmanageable and unaffordable, and would mean that subsequent generations pick up the costs of improving benefits beyond those envisaged at the time. (Survivor’s benefits in the Teachers’ Pension Scheme, Q&A, April 2018).

This briefing paper looks at the way in which forming a civil partnership or entering into a same sex marriage would affect rights to state, occupational and personal pensions. Occupational pension provision for unmarried opposite sex partners is covered in CBP-06348 Occupational pensions – survivors’ benefits for cohabitants (March 2017).

 

Commons Briefing papers SN03035

Author: Djuna Thurley

Topics: Civil partnerships, Equality, Pensions

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