K J Smith Solicitors

Denying same-sex couples pension equality ‘is sexual discrimination’

Published: 20 March 2017

In a test case within the Supreme Court, it has been heard that denying equal pension rights to a husband of a same-sex marriage is sexual discrimination when compared to the rights of a heterosexual wife.

Former cavalry officer John Walker, 65, has brought the case to the Supreme Court, as he looks to win pension rights for his husband in the event that he should die first. He is hoping to ensure that his 52-year-old husband would be sufficiently provided for after his death. As stated by Walker’s lawyer, if Walker were married to a woman, she would be set to receive £45,000 a year for the rest of her life, whereas Walker’s husband would only be entitled to £1,000 a year.

Liberty, the human rights organisation representing Walker, has suggested that the lives of thousands of couples could change significantly if a same-sex husband becomes entitled to the same pension rights as a wife.

Representatives of Walker told the court: ‘This is direct discrimination. They have chosen to treat Mr Walker’s partner less favourably than that of a heterosexual married man.The marriage does not have to have taken place during the period of service. The only thing that matters is that the person claiming pension at the time of death [of the retired employee] is the spouse.’

In 2015, judges at the Court of Appeal ruled that Walker’s claim referred to a period of time before the law recognised civil partnerships, and therefore it could not be enforced.

Walker left the army and worked for chemicals group Innospec for more than 20 years, retiring in 2003, making the same contributions to the pension scheme as his heterosexual colleagues at the company. He has been with his husband since 1993, entering into a civil partnership in January 2006 after the Civil Partnership Act 2004 was introduced in December 2005.They have also since converted their partnership into a marriage.

Liberty have stated that the claim ‘challenges an exemption in the Equality Act that lets employers exclude same-sex partners from spousal benefits paid into a pension fund before December 2005, when civil partnerships became legal’, suggesting that the exemption is discriminatory.

The Department for Work and Pensions has backed the refusal of Innospec to pay the larger pension sum. Innospec’s pension scheme relies on an exemption in the Equality Act and does not currently view surviving same-sex spouses as equal to surviving heterosexual spouses, despite most other private occupational pension schemes taking quite the opposite standpoint. Representatives of Walker argue against the exemption, stating that it should not apply due to human rights breaches, i.e. discrimination based on sexual orientation.

Before the hearing, Walker said that ‘[t]he government should be ashamed that, in 2017, I and so many others are being forced to live with the worry that our loved ones won’t be provided for when we’re gone, solely because of our sexuality. My husband and I have been together for 24 years. During that time, I also gave more than two decades of my life to Innospec, paying in exactly the same amount into the company pension fund as my heterosexual colleagues. How can it be right that my husband will get practically nothing but, if I were to divorce him and marry the very first woman I see, she would be immediately entitled to the full spousal pension? It’s not just unfair – it’s absurd.’

Representatives for Walker also said they ‘hope the Supreme Court will drive the law into the 21st century and take a huge step towards equal pension rights for same-sex spouses and civil partners. This archaic loophole has no place in the UK in 2017, and it is disgraceful that the Department for Work and Pensions continues to spend taxpayers’ money fighting to preserve it. There can be no price tag on equality.’

Peter Tatchell, an equal rights campaigner supporting John Walker’s claim, said he was appalled that Mr Walker had been forced to go to court to ‘remedy this clear-cut discrimination against same-sex couples in pension inheritance rules. His partner, and thousands of other gay people in a similar situation, will suffer huge financial losses under the current regulations. This legal bid is a simple matter of equality and fairness. The surviving partners in same-sex civil partnerships and civil marriages should have the same pension inheritance rights as the surviving spouses in heterosexual marriages.’

At K J Smith Solicitors, our team of family law specialists have many years of experience in issues relating to civil partnerships and traditional divorce. If you wish to discuss your circumstances to see how we can help, contact us today to arrange your free 45-minute consultation on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor),01256 584000 (Basingstoke) 01483 370100 (Guildford) or 01494 629000 (Beaconsfield).

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