Same sex marriage - are we nearly equal yet?

We reported in "Same sex marriage, for richer for poorer" in our March edition of the newsletter that the Marriage (Same Sex Couples) Bill had been introduced to Parliament and in terms of pensions provision was drafted on the basis that same sex spouses would be entitled to survivor benefits from a pension scheme on the same basis as civil partners, rather than opposite sex married couples. The effect of this is that on the death of their partner, a surviving same sex spouse would only be entitled to pension benefits that were accrued after the Civil Partnership Act came into force on 5 December 2005 (and in addition contracting out rights accrued from 6 April 1988) and therefore benefits are restricted.

This drafting, especially against the background of the case of Walker v Innospec Limited & Ors, sparked a great deal of debate on the basis of benefits granted in relation to all current and soon to be legal relationships and the disparity between these.

The Marriage (Same Sex Couples) Act 2013 received Royal Assent on 17 July and it would appear that in the final stages of scrutiny that Parliament took on board these issues to a certain extent, although not to the extent that some campaigners hoped.

A new section 16 has been added to the Act that was previously not part of the Bill. This section imposes an obligation on the government to review the differences in survivor’s benefits for opposite sex and same sex couples including considering the cost implications of equalising survivor’s benefits. The review is to be completed and a report published by 1 July 2014 after which any amendments which the government considers appropriate to reduce or eliminate inequality will be made by regulations under the Act.

There will be no definitive guidance until any regulations are issued and until then we can only speculate what the outcome of the review will be. The government may retain the current position and allow schemes to only provide access to pre 2005 (with the exception of contracted out rights from 6 April 1988) benefits to surviving spouses of opposite sex marriages (as it did for civil partners). Alternatively they may require that partners in same sex marriages are treated the same as those in opposite sex marriages and then it remains to be seen whether equivalent provisions will require to be applied to those in a civil partnership to prevent discrimination.

The position remains that if schemes are required to equalise all benefits this is likely to have funding implications.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Tim Green

Partner - Head of Pensions

I am a Partner in the Pensions team with a broad advisory, transactional and dispute resolution practice.