House of Commons Library publishes note on pensions and same sex marriages

Summary of the 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, 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: i) paragraph 18 of Schedule 9 of the Equality Act 2010 is incompatible with EU law and must be disapplied, and  ii) 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 (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). It decided that schemes should consult on changes to provide for: • the survivors of male same-sex partners to have their entitlements equalised with those of widows;  • the survivors of female same-sex partners to have their entitlements equalised with those of widows; and  • for any residual differences in entitlement between male and female same sex couples to be equalised in respect of service since 17 May 1990 only. 

It was not at this point extending the same treatment to widowers (male survivors of opposite sex marriages. It had consulted on this in its review of survivors’ benefits and would respond separately and in due course. (NHS pension scheme consultation, Dec 2018, para 3.4-5; LGPS consultation, Oct 2018, p8). Occupational pension provision for unmarried opposite sex partners is covered in CBP06348 Occupational pensions – survivors’ benefits for cohabitants (January 2019). 

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