Pension provision is the same for same-sex and mixed-sex married couples and civil partners, except for schemes which pay benefits to the surviving partner of a couple, in the event of the death of the pension holder.
Civil Partnership Act
Prior to the Civil Partnership Act (2004), there was no way for a same-sex couple to have a legally recognised relationship. This has created disparity in the way survivor pension schemes are calculated for same-sex couples.
Before 2017, when calculating what surviving partners were entitled to, pension scheme providers were not legally obligated to include members' contributions from before 2005 when the Act came into place.
This meant that the surviving partner from a same-sex relationship was only entitled to survivor benefits based on contributions their spouse had made since 2005, but not before.
Private sector pensions
Formerly, UK law only required that schemes take into account service from 5 December 2005 onwards when calculating survivors’ benefits for same-sex married couples or civil partners.
An employer could choose voluntarily to offer more than the statutory minimum, however, this was a matter of their discretion and was not regulated by government. While most employers had opted to treat all employees equally, regardless of sexual orientation, there were cases when this did not happen.
However, in 2017, after a lengthy legal case involving a private sector employer, the Supreme Court made a landmark ruling that any discrimination on the basis of sexual orientation in pension provision is a breach of the EU Framework Directive and is therefore illegal under UK law.
Full details on the Supreme Court's ruling can be found here.
Public sector pensions
Although public sector survivor pension schemes guarantee a fairer deal for same-sex partners there is still a disparity based on gender.
Originally survivor pension schemes were just for male workers and payments were received by their widows. In 1988 pension providers were required, by law, to extend schemes to women. This meant their widowers would receive payments on their death. These payments can be backdated to no earlier than the change in law; 1988. Payments to widows are backdated to 1978, and therefore the surviving female partner of a man who made contributions before 1988, could receive more than the male surviving partner of a woman who made the same contributions, under the current rules.
The government decided that same-sex married couples and civil partners should be treated in exactly the same way as widowers (not widows) under all public service pension schemes, private sector contracted-out occupational pension schemes, and the pension protection fund rules (these rules cover what happens when a pension scheme goes bust). This means that a survivor’s pension is paid to a surviving spouse or civil partner based on member's contributions on their service back to 1988, not 1978, which is only available to a woman surviving partner of a man.
The disparities outlined above were the subject of a review by the Government and details can be read here
The review was completed in 2014 and does not consider the 2017 Supreme Court ruling. To date, the government has not taken any action based on the 2014 review to change the rules to equalise benefits in all public and private sector schemes.
What happens now after the Court's ruling?
The government now needs to respond to the 2017 Supreme Court ruling to ensure all pension schemes are within the law and not discriminating on the basis of sexual orientation.
Stonewall believes the judgement has implications for the disparities that exist in both private and public sector schemes. We want the government to end these disparities and ensure all pension schemes treat surviving partners of same-sex couples in the same way as they treat all opposite-sex couples.
We are seeking clarification from the government on when they will respond and are also seeking assurances that they will ensure this change will not be affected by the UK leaving the EU, as the judgement was based on EU law.
For further guidance on how the ruling may affect you, we recommend seeking legal advice.
Other useful sources of support
You can find LGBT-friendly solicitors and other useful contacts through Stonewall's online database What's In My Area.
For further information contact Stonewall's Information Service.