On the death of a member, many defined benefit schemes provide those who were in a civil partnership with the member at the date of death with a different level of survivor’s pension than those who were married to the member. Schemes are currently permitted by law (the Equality Act 2010) to provide only a widow’s GMP and spouse’s pension based on pensionable service from 5 December 2005 (the date when civil partnerships were first introduced).

In an interesting development last December 2012, the Employment Tribunal decided in the case of Walker v Innospecthat a pension scheme which did not provide the same benefits to registered civil partners as were provided to spouses on a member’s death was discriminatory. This was in spite of the Equality Act exemption. As it was an Employment Tribunal decision, it is not binding – so need not be followed by those not involved in that particular case.

The new Marriage Act treats same-sex marriages in the same way as registered civil partners, so maintains the same exemption for pension scheme benefits. However, the Secretary of State is required, under Section 16 of the new Act (one of the few provisions which is already in force) to review the restriction and report on the costs and other effects of eliminating the different treatment before 1 July 2014.

So will the Secretary of State continue to permit the differing treatment or will the legislation in future be amended to follow Walker v Innospec? We will be keeping a watching brief on future developments.

Technical information

To view the Marriage (Same sex Couples) Act 2013, click here