News that the Court of Appeal has refused the application of a gay man for his husband to be treated in the same manner upon his death as a surviving heterosexual spouse has underlined that the principal of equality does not extend to every area of the law.

John Walker, aged 62, launched a legal battle to ensure that his husband would receive a full spouse’s pension upon his death after being shocked to learn that his husband would be entitled to just 1% of the amount that a bereaved wife would receive.
In twenty years with his employer, Mr Walker paid substantial contributions into his pension fund and was able to draw an income of £85,000 per year when he retired in 2003. Under Mr Walker’s pension scheme rules, a surviving spouse would receive £41,000 per year following his death. However, this rule only applies to heterosexual couples. Despite Mr Walker having lived with his husband since 1993, registered a civil partnership in 2006 and subsequently converted that into a marriage, upon Mr Walker’s death his husband would receive just £500 per year.
Mr Walker’s application to an Employment Tribunal in 2012 overturned this rule as being in contravention of European laws and required the pension scheme to pay the full survivor’s pension to his husband. Unfortunately for Mr Walker, this decision was appealed successfully due to an exemption in the Equality Act 2010 which means that pension rights accrued before civil partnerships became law in December 2005 do not have to be paid out in full to a civil partner. The Court of Appeal has upheld this decision, despite Mr Walker claiming that it breached his human rights for equal treatment of employees.
Who is affected by this?

This ruling potentially affects anyone in a civil partnership or same-sex marriage who has made pension contributions prior to 5 December 2005.
If this applies to you, the first port of call is to check the rules of your pension scheme. Most occupational schemes include a survivors’ pension which generally gives a bereaved spouse 50% of the scheme members’ pension for the rest of their life, regardless of when the couple married. Many pension schemes, particularly public sector schemes, have voluntarily extended this provision to same sex spouses and civil partners

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My scheme has not voluntarily extended this provision, what should I do?
Pensions are complex so it is essential to seek specialist advice from a pension advisor to consider your options.
Will the law be changed following this decision?
It seems unlikely. The court has determined that the Equality Act cannot be applied retrospectively. Lord Justice Underhill, giving judgment in the Court of Appeal, stated that Mr Walker and his husband would find the decision “hard to accept. But changes in social attitudes and the legislation that embodies those changes cannot fully undo the effects of the past.”
Unless this judgment is overturned by the Supreme Court (and it is not known whether Mr Walker seeks to challenge this decision there), it appears that the judiciary is simply unable to override the exemptions in the Equality Act and the only way this discrimination will be challenged is if parliament legislates to ensure that all schemes allow full sharing of the pensions of couples in same sex marriages and civil partnerships. As the government has previously rejected doing this on the grounds that the cost of this would be around £3.3 billion, there is little hope that Mr Walker and many others’ in his position will see their spouses and civil partners treated equally upon their death.
Matthew Taylor Solicitor, Family Department, Weightmans LLP.

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