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Blandy & Blandy Solicitors

Insights // 18 December 2015

A Setback for Same Sex Couples Seeking Equal Pension Rights

Solicitor Lorna Sansom discusses same sex couples' pension rights.

If you are in a Civil Partnership or same sex marriage, you should not assume that your surviving partner will receive a spouse’s pension from your occupational pension scheme when you die.

On 6 October 2015, the Court of Appeal delivered its judgment in the case of John Walker, who was seeking to secure a surviving spouse’s pension in the event that his husband outlived him.  Mr Walker worked for Innsopec from January 1980 up to his retirement in March 2003.  He entered into a civil partnership in 2006, which was later converted to a marriage.  The rules of the Innospec pension scheme provided that, if a member were to die on or after 1 December 1999 leaving a surviving spouse, that spouse would receive a pension for life.  As far as Mr Walker was concerned, this covered his husband; Innospec disagreed, saying that the period of service for which Mr Walker’s pension benefits had accrued predated the Civil Partnership Act and could not, therefore, be taken into consideration in the provision of a spouse’s pension.

In 2012 an employment tribunal ruled in favour of Mr Walker, so in 2014, Innospec, with the support of the Department for Work and Pensions, appealed to the Employment Appeals Tribunal.  The EAT ruled that an exemption in the Equality Act 2010 disapplied pension rights accrued before 5 December 2005, when the Civil Partnership Act came into force giving same sex couples the right to equal treatment in respect of their pension benefits.  The Court of Appeal agreed that pension benefits are accrued during an employee’s period of service and that to allow Mr Walker’s husband to receive a surviving spouse’s pension would be to give the law retroactive effect. 

In his judgement, Lord Justice Underhill stated “I can understand that Mr Walker and his husband will find this conclusion hard to accept.  But changes in social attitudes, and the legislation which embodies those changes, cannot fully undo the effects of the past.”

How does this decision affect retirement and estate planning for same sex couples?

In April 2015, there was a significant change in the rules on pension death benefits, which will be hugely advantageous for many pension scheme members.  The issue for Mr Walker, was that he retired and took his pension some time ago and was locked into the rules that then applied.  

If you became a member of a pension scheme before 5 December 2005 and are worried that this ruling may affect you, you should first check with the scheme, as some pension schemes have fully equalised benefits for same sex couples.  

If you are affected but are not yet locked into a pension like Mr Walker, you should seek advice from a specialist pension adviser to find out what options might be open to you in order to provide for your surviving partner from your pension.

It is vital that pension scheme members understand their benefits and the options that are open to them on retirement and to their beneficiaries on death.  A pension fund is often as big an asset as the family home and should be properly considered when planning for the future.  Although a pension fund does not pass under the terms of your will, pension benefits should always be taken in consideration when reviewing your will.  Remember also that marrying or entering into a civil partnership revokes an existing will, so you should always make a new will under these circumstances. 

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

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