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Same sex marriage - genuine equality?

29/05/2013
There is not a great deal of legal difference between marriage and civil partnership but one key area of difference is that under the terms of most final salary pension schemes a married person's There is not a great deal of legal difference between marriage and civil partnership but one key area of difference is that under the terms of most final salary pension schemes a married person's widow or widower usually receives a share of their pension. However, under an exemption to the Equality Act 2010 the same rules do not apply to civil partnerships. Pension scheme trustees only have to take into account pensionable service after 5 December 2005 when calculating the share of an individual's pension that would pass to their civil partner. As a consequence, civil partners may receive less than a married person's spouse. Press reports over the weekend reported that this difference will not be changed in the Marriage (Same Sex Couples) Bill.

If one of the few areas of difference between marriage and civil partnerships is not to be changed then why all the talk of equality? The Government has sought to justify the difference on the grounds that granting civil partners full retrospective pension rights would entail unforeseen costs at a time when schemes are under significant pressure.

However, the matter is being challenged in the Employment Tribunal system. In the case of Walker v Innospec Ltd [2013] Mr Walker brought a claim of discrimination on grounds of sexual orientation when the trustees of Innospec's pension scheme confirmed that in the event of his death they would apply the Equality Act exemption to his pension and accordingly his long term partner would receive a minimal pension (£500 p.a. compared to £41,000 p.a. had Mr Walker been married to a woman). An Employment Tribunal found that domestic legislation was in breach of the Equal Treatment Directive and was discriminatory. The matter is currently being appealed and the Government has joined the appeal as an interested party, so watch this space.

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