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Same sex marriage pension rights

21/07/2017

John Walker is an unlikely hero but his recent victory in the Supreme Court will see him go down in history as a key figure in the battle for equal rights for same sex couples. 

His 11-year campaign to get the same pension rights for his husband as a wife would enjoy has set a legal precedent for other same sex married couples. 

Harbinder Gosal, Senior Associate in our family team, reflects on the implications of the judgement:

For years, husbands and wives have been able to retire safe in the knowledge that if they die before their spouse, part of their hard earned pension would be still be paid to their loved one.

But that wasn’t the case for John Walker, who entered into a civil partnership with his husband in 2005. He had to take his former employer to an employment tribunal and the Court of Appeal before claiming victory at the Supreme Court recently. 

The Equalities Act allowed the company to argue that only Mr Walker’s contributions made after the Civil Partnership Act should be counted when calculating his husband’s entitlement to a widower’s pension. If Mr Walker had been married to a woman, his whole pension would have been counted.

Should he die, Mr Walker’s husband will now receive the full spouse’s pension from his former employer.

This case is a major step forward in removing one of the final layers of discrimination against same sex couples but, as the victory came under EU law, it remains to be seen as to whether Brexit will impact on future decisions that may be contested through the courts.

For all married couples, pension rights can be a key issue when it comes to divorce and we often advise clients to be mindful of the effect this can have on any future pension rights when going through the legal aspects of separating their assets.
 
If their ex-husband or wife dies after a Decree Absolute - the final stage in divorce proceedings that ends the marriage - but before they have sorted out pension sharing (or any other financial settlement) then their entitlement to a widow or widower’s pension is lost and they get nothing. 

It is therefore extremely important to ensure a financial agreement to include a pension sharing order if it is relevant is in place before the Decree Absolute. 

It is vital that people consider how divorce will affect their retirement and seek full disclosure of their spouse’s pensions.

For further information regards same sex marriage and financial matters, please contact Harbinder on 01902 392420 or email h.gosal@fbcmb.co.uk.


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