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Heterosexual civil partnership ruling could affect pensions

Out-Law News | 28 Jun 2018 | 5:16 pm | 3 min. read

Extending civil partnerships to heterosexual couples could create new liabilities for pension schemes which pay out survivor benefits, according to pensions experts at Pinsent Masons, the law firm behind Out-Law.com.

This week, the UK's highest court ruled that restricting civil partnerships to same sex couples only is discriminatory. It found in favour of heterosexual couple Rebecca Steinfeld and Charles Keidan, who had sought a civil partnership based on their desire to enter into a legally-recognised relationship despite their "conscientious objection to marriage".

The 2004 Civil Partnership Act (CPA), which introduced legally-recognised civil partnerships in England and Wales, was not repealed when the Marriage (Same Sex Couples) Act (MSSCA) came into force on 13 March 2014. The UK government has acknowledged that the entry into force of the MSSCA created inequality between same sex and heterosexual couples, but has argued that it needs more time to investigate how best to deal with that inequality.

The Supreme Court, in a unanimous judgment, has now rejected the government's attempt to justify what it admits is a breach of the prohibition on discrimination and the right to respect for private life under the European Convention on Human Rights (ECHR).

"To be allowed time to reflect on what should be done when one is considering how to deal with an evolving societal attitude is reasonable and understandable," said Lord Kerr, giving the judgment of the court. "But to create a situation of inequality and then ask for the indulgence of time – in this case several years - as to how that inequality is to be cured is, to say the least, less obviously deserving of a margin of discretion."

"The point at which the now admitted discrimination will come to an end is still not in sight. The interests of the community in denying those different sex couples who have a genuine objection to being married the opportunity to enter a civil partnership are unspecified and not easy to envisage. In contrast, the denial of those rights for an indefinite period may have far-reaching consequences for those who wish to avail of them - and who are entitled to assert them - now," he said.

The Supreme Court noted that its declaration of incompatibility with the ECHR "does not oblige the government or parliament to do anything". The government has suggested that it might consider abolishing civil partnerships entirely if demand had fallen since the entry into force of same-sex marriage, although it does not expect to have sufficient evidence to make a decision until September 2019.

Pensions expert Stephen Scholefield of Pinsent Masons said that pension schemes which pay out survivor benefits could face additional costs should the government choose to extend civil partnerships to heterosexual couples.

"For some schemes, the position may become simpler, however, allowing opposite sex couples to enter into a civil partnership and receive the pension benefits flowing from that will be another cost for final salary schemes," he said.

"It shows that even when benefits have long ceased to accrue, schemes are vulnerable to changes in the law improving the promises that they made. Most schemes will be able to cope with that. However, where benefits have been insured outside the scheme, there is a risk that opposite sex civil partners, if these become possible, may find that they are not covered by the policy terms," he said.

Pensions expert Alastair Meeks of Pinsent Masons, who has a civil partnership, questioned whether there would be much demand for civil partnerships from heterosexual couples which had not yet chosen to marry.

"In 2015, roughly one in nine newly-hitching same sex couples opted for a civil partnership," he said. "So far as costs to pension schemes are concerned, however, the question is not whether people would prefer a civil partnership, it's whether there is a substantial pool of straight couples so alienated by the idea of marriage that they have refused to tie the knot in the absence of civil partnerships being available to them. I'm unconvinced."

"The idea seems to have gained currency that civil partnerships are less formal. This simply isn't true. The local authorities will perform the same checks to make sure the arrangement isn't a sham and the legal consequences of civil partnerships are almost identical to marriage. We may see a reasonable number of opposite sex civil partnerships but I'm doubtful whether the overall flow of formalised couples is going to increase very much. And those thinking that civil partnership might be a lower cost option might find in the longer term that they've made a false economy - the experience of same sex partners has been to treat civil partnership ceremonies with most of the trimmings usually associated with a marriage," he said.