Helen and Ebony were interviewed by Samantha Gilbert at LexisNexis. This article was originally published on LexisLibrary and LexisPSL.
What is the background to SI 2019/1458?
Since 2005, same-sex couples have been able to enter into civil partnerships by virtue of the Civil Partnership Act 2004 (CPA 2004). The Marriage (Same Sex Couples) Act 2013 subsequently legalised same-sex marriage in England and Wales, giving same-sex couples the choice between whether to enter into a civil partnership or a marriage.
There are over three million co-habiting opposite-sex couples in the UK who do not currently have the same rights and protections enjoyed by those who are married or in a same-sex civil partnership. There is no such thing as a common law marriage in the UK, and although the Cohabitation Rights Bill is in the early stages of passing through Parliament, marriage is currently the only option to formally legalise an opposite-sex relationship and gain the associated legal security and financial benefits.
This has now all changed. The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 (SI 2019/1458) came into force in May 2019 and stated that CPA 2004 should be amended to allow opposite-sex couples to form civil partnerships in England and Wales. Consequently, SI 2019/1458 was developed and came into force on 2 December 2019.
This move follows a Supreme Court ruling in June 2018 (R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary) (Respondent), [2018] UKSC 32, [2018] All ER (D) 145 (Jun)) that concluded CPA 2004 was incompatible with the European Convention on Human Rights, as CPA 2004 only applies to same-sex couples.
What are the changes outlined in SI 2019/1458 (in relation to pensions) and why are the changes being implemented now?
Fundamentally, SI 2019/1458 will extend civil partnerships to opposite-sex couples in England and Wales (see SI 2019/1458, pt 2). The definition of a civil partnership and the eligibility criteria for registering as civil partners will be amended to remove the same-sex requirement in CPA 2004, ss 1 and 3.
CPA 2004, Pt 5 will also be amended to allow certain opposite-sex relationships formed in other jurisdictions (which are not marriages) to be recognised as civil partnerships in England and Wales. Examples of such relationships covered include a domestic partnership in California or a civil union in New Zealand.
In terms of pensions, SI 2019/1458, Sch 3 Pt 3 amends legislation relating to a number of public service schemes, such as certain pension schemes of the Armed Forces and the NHS.
SI 2019/1458, Sch 3 also amends primary and secondary legislation, including the Pension Schemes Act 1993 and the State Pension Regulations 2015. These changes mostly consist of substituting references to ‘married couple’ with ‘as if they were a married couple or civil partners’.
Separate regulations were recently laid before Parliament that amend the Local Government Pension Scheme in relation to opposite-sex civil partnerships to ensure that the death benefit for a survivor of an opposite-sex civil partnership will be the same as the benefit for a widow or widower in an opposite-sex marriage.
What are the practical implications of SI 2019/1458 for pension scheme trustees, sponsoring employers and scheme members?
Trustees will need to decide whether their scheme rules need amending in light of SI 2019/1458, particularly in relation to survivors’ benefits for opposite-sex civil partners.
It is anticipated that there may be additional costs for pension schemes that pay out survivor benefits, as these benefits will most likely need to be extended to include opposite-sex couples in civil partnerships. At present, surviving same-sex civil partners are generally treated in the same way as widows or widowers.
For scheme members who choose to enter into opposite-sex civil partnerships, SI 2019/1458 could offer them with access to further pension benefits they would otherwise not be entitled to as co-habiting couples, providing them with greater legal protection and financial security.
In particular, what kind of changes will trustees need to make to the governing documentation of pension schemes?
As the majority of the provisions of SI 2019/1458 are simply amending CPA 2004, it may be that amendments are not required if scheme rules have used gender-neutral wording to describe the rights and benefits of civil partners.
Following the Supreme Court’s judgment in Walker v Innospec [2017] UKSC 47 it is now unlawful to include a temporal restriction on the calculation of dependant’s pensions payable to civil partners or same-sex spouses. It will be important for trustees to note whether their rules will automatically apply this to same-sex civil partners.
Trustees will need to ensure that where references are made to a member’s ‘spouse’, ‘widow’ and ‘widower’ in any scheme documentation, a member’s civil partner of the opposite-sex is also included in these definitions.
SI 2019/1458 will need to be included in any definitions that reference ‘Equality Legislation’ (or similar provisions).
What is the timetable for implementation of the changes? What are the government’s next steps?
The government stated that the implement date for SI 2019/1458 was on 2 December 2019, enabling the first opposite-sex civil partnerships to be registered on 31 December 2019 once the 28-day notice period has lapsed.
In terms of next steps, the Government Equalities Office has consulted on proposals to introduce a new right for opposite-sex couples to convert from a marriage to a civil partnership for a limited period of time. The consultation ‘Implementing Opposite-Sex Civil Partnerships—Next Steps’ was published in July 2019. This also considered whether any changes should be made to the existing right to convert a same-sex civil partnership to a marriage (see ‘Implementing Opposite-Sex Civil Partnerships’ consultation).
The Government Equalities Office is currently analysing the consultation responses and is due to publish a report in the coming months. New regulations on conversion rights are unlikely to be introduced until later next year. Until this process has been completed, the existing right for same-sex couples to convert from a civil partnership to marriage will be maintained, while all proposals for conversion rights for opposite-sex couples will be placed on hold.