In Focus: Advice for Women  

How to give pension advice to same-sex couples in divorce

  • By the end of this feature, you should understand the three options facing divorcees.
  • You should be able to explain how each pension division option affects both parties.
  • You can explore various options with clients to help them split their pension.
CPD
Approx.30min
How to give pension advice to same-sex couples in divorce
 Photo by Liza Summer from Pexels

It is not uncommon for pension rights to represent a significant proportion of the matrimonial assets.

Therefore, dealing with these rights in a way that ensures that both parties’ interests are best served may lead to some difficult and acrimonious discussions.

The circumstances of each party may be such that finding a solution that suits both is elusive.

Advisers are likely to be approached by the legal representatives of one party with a view to reaching an optimal solution for that party.

In the case of same-sex marriage and divorce, the Civil Partnership Act 2004 gave same-sex couples the right to register as civil partners from December 21 2005.

But the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry and, for the purposes of state pension and occupational pension rights, the act provided for same-sex married couples to be treated in the same way as civil partners.

Legal precedent

According to law firm Ellis Jones, greater equalities surrounding pensions were secured in July 2017, when the Supreme Court ruled that a same-sex spouse should be entitled to the same spousal pension provision as a heterosexual spouse while they remain married.

This was the Walker (Appellant) v Innospec Limited and others (Respondents) case, in which John Walker, who had lived with his partner since 1993 before finally marrying, and his legal team successfully secured equal pension rights for gay couples in the landmark discrimination case.

According to the Supreme Court judgement, which unanimously allowed Walker’s appeal and declared that Walker’s husband was entitled on his death to a spouse’s pension, provided they remain married, pension equality must be a right under the European Court of Justice.

The judgement at the time said: "Although EU law does not impose any requirement on member states to recognise same-sex partnerships, the European Court of Justice has held that if a status equivalent to marriage is available under national law, it is directly discriminatory contrary to the framework directive for an employer to treat a same-sex partner who is in such a partnership less favourably than an opposite-sex spouse.

"In the UK, parliament has chosen to recognise same-sex partnerships, first through the introduction of civil partnerships and subsequently through the recognition of same-sex marriage itself."

It also cited two cases in European law that showed it was clear that unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Walker’s entitlement to a survivor’s pension for his husband, at the time that this pension would fall due, there was "no reason that he should be subjected to unequal treatment as to the payment of that pension".

The judgement added: "Walker’s husband, provided he does not predecease him and that they remain married at the time of Walker’s death, is therefore entitled under the framework directive to a spouse’s pension calculated on the basis of all the years of Walker’s service with Innospec."