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the Official Guide to LGBT History Month 2017

Fri 11 Dec, 2015
By Darren Waite

Inequalities actually make it harder to get out of a same sex marriage than an opposite sex one

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Does the Same Sex Marriage Bill really Offer Equality for Gay Couples?

The gay community rejoiced in March 2014 when years of campaigning finally brought to an end marriage inequality in England and Wales (with Scotland following suit in December).

The Marriage (Same Sex Couples) Act meant gay couples could legally wed for the first time, and those who had already entered into Civil Partnerships were entitled to convert their legal status to ‘married’.

But while the new law is without question a milestone in the history of gay rights campaigning in the UK, it is not without its faults. Inequalities actually make it harder to get out of a same sex marriage than an opposite sex one, and loopholes mean a same sex spouse could be left wanting when it comes to pension entitlements in the event of their partner’s death.

Same sex marriage may have been legislated, but that doesn’t necessarily translate to equal marriage. As ever, the devil is in the detail.

Gay adultery and the law

There are five legal grounds for divorce in England and Wales - adultery, unreasonable behaviour, desertion, having lived apart more than two years (if both agree to divorce) or more than five years (if only one partner wishes to divorce).

It’s a different matter in Scotland but, regardless, adultery is defined in the same way in all three nations - and that definition states that the adultery must take place between a man and a woman. In other words, if a same-sex spouse has an affair with someone of the same sex, they are not committing adultery.

Interestingly, this anomaly affects opposite-sex marriages too - a wife who discovers her partner is cheating on her with another man is unable to cite adultery as grounds for divorce.

Similarly, same-sex spouses cannot annul a marriage on the grounds of non-consummation - another inequality which separates gay marriages from heterosexual ones.

Pension entitlement

Survivors’ benefits are those benefits paid by occupational pension schemes to survivors of the scheme member. For a heterosexual couple, the situation is clear - the surviving partner is entitled to access the accrued pension fund in full.

One of the most striking inequalities around same sex marriages however is in the pension entitlement (or lack of) of a surviving spouse in a same sex marriage. If you’ve been paying into a pension for thirty years, assured that, should you die, your wife or husband will at least have some financial security under the ‘survivor benefits’ provision of your pension fund. This simply isn’t the case for surviving gay spouses.

A loophole means pension companies can actually limit the payout to the part of the fund accrued since 2005, irrespective of how long the deceased fund-holder has been paying into it.

The government estimates that ‘full equalisation’ would cost in the region of £3.3 billion.

Thankfully, according to Liberty, three-quarters of occupational pension schemes have voluntarily extended survivor benefits to same-sex spouses, but the remaining quarter continue to lobby for this inequality to remain in force, arguing that equalising the situation would result in significant ‘unforeseen costs’.

Campaigners, including Tory MP Mike Freer, who wrote about the issue in Pink News in 2013, respond by pointing out that all pension funds are exposed to the risk of unforeseen costs; such as longevity, fund holders getting married and how long fund holders will live after retirement.

Activists have seized upon this pension inequality, with human rights campaign group Liberty taking up the case of ex-British Army officer John Walker.

Mr Walker worked for chemical giant Innospec for 23 years and believes his husband should have the same right to his full pension fund as any heterosexual partner would have to their spouse’s fund.

Were Mr Walker married to a woman, she would be entitled to £41,000 a year in the event of his death. As it stands, his husband is allowed a paltry 1% of that sum - just £500 p/a. The couple have been together 20 years.

Although an employment tribunal ruled in 2012 that Innospec’s scheme breached EU law and the European Convention on Human rights, the company - backed by the DWP - took the case to the Employment Appeal Tribunal. It ruled current law could not be applied retrospectively. In other words, Mr Walker’s husband had no claim over the part of his pension fund built up before the Civil Partnership Act of 2004.

Subsequently, Liberty took the case to the Court of Appeal in June 2015. At the time of writing, they are still awaiting a decision from appeal judges.

Take positive action

As the law stands, if you are a partner in a gay marriage, there’s nothing you can do to legally guarantee your right to your wife or husband’s pension fund pre-2005, but it’s worth you both checking with the relevant pension company as they may voluntarily offer entitlement.

And, as with any marriage, you should consider drawing up a pre-nup agreement detailing exactly how any assets will be divided should you split up, as well as a will - especially if you are planning a family.


About the Author: Muna Saleem is an associate solicitor with Crisp & Co, a Family Law firm with offices throughout South East England. She is an accredited member of the Law Society’s Family Law Panel, practicing in all areas of private family law. You can connect with her or any of Crisp & Co’s Solicitor’s via Facebook or call them on 020 3468 6721

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