Pensions: civil partnerships and same sex marriages

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:

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).

Having reviewed the judgment, the Government decided that, for public service pension schemes, benefits for survivors of civil partnerships or same-sex marriages would generally be aligned with those for widows of opposite-sex marraiges. It decided not to make further retrospective changes (i.e. not to fully equalise survivors benefits for widowers of opposite-sex marriage with those of widows):

The Walker judgment has clearly changed the legal position relating to survivor benefits in respect of same-sex unions, and the Government have acted; public service pension schemes will now implement changes to provide that survivors of registered same-sex civil partnerships or same-sex marriage will be provided with benefits that replicate those provided to widows of opposite-sex marriages, with the exception of specific schemes where survivor benefits depend on making the correct contributions. As was made clear earlier in this statement, private pension schemes must take advice and act accordingly in complying with the judgment.

Following careful consideration of the review’s findings, the Government have concluded that, aside from those changes brought about by the Supreme Court judgment, they will not make any further retrospective changes to the existing provisions in respect of occupational pension schemes to equalise survivor benefits. While this means that the differences in survivor benefits for accruals in past periods will remain for some, these will work their way out of the system in time. (HC 73-76WS, 4 July 2019).

Occupational pension provision for unmarried opposite sex partners is covered in CBP-06348 Occupational pensions – survivors’ benefits for cohabitants