UK: Same-Sex Marriage: Get Your Scheme Ready For The Big Day

Last Updated: 5 February 2014
Article by Ian Greenstreet and Susan Jones

Summary and implications

The first same-sex marriages can take place in England and Wales on 29 March 2014. The legislation gives surviving same-sex spouses similar occupational pension rights to civil partners.

Schemes, including those closed to future accrual, need to decide what benefits they will provide to surviving partners (statutory minimum or more generous) and consider what amendments are required to achieve this. This largely affects defined benefit schemes but other schemes may also need to consider making changes, particularly to any insured death-in-service benefits and pension sharing on divorce provisions.

  • If no action is taken then a surviving same-sex spouse will be entitled to the same benefit as a surviving opposite-sex spouse, but (for non-contracted out rights) only in relation to pensionable service since 5 December 2005.
  • Amendments will be needed to contracted out schemes to reflect the right of a surviving same-sex spouse to a GMP on the same basis as a widower.
  • Lump sum death-in-service benefits calculated as a multiple of salary will be payable in full on the same basis as for a surviving opposite-sex spouse.

We would recommend that schemes adopt the same benefits for surviving same-sex spouses as they have for civil partners. This will avoid complications should a member who is already in a civil partnership subsequently choose to marry.

Same-sex marriage: impact on occupational pension schemes

The starting point is that a marriage of a same-sex couple will have the same legal effect as a marriage of an opposite-sex couple. This means that any references in law to marriage, or connected terms such as "spouse", will apply equally to a same-sex married couple as to one of the opposite sex, unless the legislation provides otherwise.

Crucial for pension schemes is a provision which states that the new law does not alter the effect of any private legal instrument made before it comes into force. This includes pension scheme trust deeds and rules. This means that a same-sex spouse will not automatically be a "spouse" for the purposes of the scheme and, if nothing is done after 29 March, will only be entitled to the minimum benefits required by equality law (these are covered in more detail below). Care should be taken in any future scheme amendments affecting spouse benefits as they may have unintended consequences for same-sex spouses.

Providing the statutory minimum: still good practice to amend

Benefits payable to a surviving opposite-sex spouse must be payable on the same basis to a surviving same-sex spouse (only in relation to pensionable service on or after 5 December 2005)

The Equality Act requires that where benefits are payable to a surviving opposite-sex spouse then they must be payable on the same basis to a surviving same-sex spouse (only in relation to pensionable service on or after 5 December 2005).

The new law does not alter the effect of any private legal instrument made before it comes into force

This requirement is overriding and trustees must pay the benefits regardless of the scheme rules. Even where the statutory minimum is to be provided it would be good practice to document this as a rule amendment and in scheme literature so that the benefits payable are clearly stated.

The 5 December 2005 limit is currently under review. It has been challenged as being in breach of European Union law. The outcome of the review is expected by July 2014.

If no spouse benefits are currently provided then there is no requirement to introduce them. Also, it remains lawful to offer benefits to surviving spouses and civil partners but not to surviving members of other forms of partnership. However, where benefits are provided (for example, to co-habiting partners) then there must be no discrimination on the grounds of sexual orientation.

Being more generous: need to modify the rules

The decision to allow benefits to be payable on a more generous basis will usually lie with the employer who will be meeting the cost

It is open to schemes to provide surviving same-sex spouses with pension benefits for the full period of pensionable service. This will usually require an amendment or modification to the scheme rules although it might be possible to use the existing augmentation power in individual cases.

The decision to allow benefits to be payable on a more generous basis will usually lie with the employer who will be meeting the cost.

Death-in-service benefits

Lump sum death-in-service benefits are usually based solely on a multiple of salary rather than length of pensionable service and will therefore be payable in full. In most schemes the lump sum is payable under discretionary trusts and the scheme rules will list the possible recipients (generally with any surviving spouse at the top of the list).

Trustees must treat a same-sex spouse in exactly the same way they would an opposite-sex spouse when considering the distribution of the lump sum. Trustees using nomination or expression of wish forms should review the wording of the form to ensure it accommodates same-sex spouses.

Contracted-out schemes: amendments required

The contracting-out legislation is not overriding and amendments will be needed to provide pension benefits for surviving same-sex spouses.

As for civil partners, GMPs must be provided in the same way as for a widower. This is 50 per cent of the GMP accrued after 5 April 1988. In relation to post April 1997 service, a pension of 50 per cent of the reference scheme pension should generally be payable to the surviving spouse of a same-sex marriage.

Pension sharing on divorce

The statutory provisions for pension sharing and earmarking on divorce will apply equally to divorcing same-sex spouses. Scheme rules should be reviewed and if necessary amended to allow for this.

Making amendments to the scheme

In many schemes, an amendment to allow for a same-sex survivor's pension could have a knock on adverse effect on the contingent benefits of existing children or dependents. In order to avoid problems with section 67 (which restricts amendments to accrued rights), regulations have been laid which exempt amendments made in order to treat a surviving same-sex spouse in the same way as a surviving opposite-sex spouse from that section.

There is also a power in regulations for trustees to modify schemes to introduce benefits for same-sex survivors (with employer consent in some cases) which could be used where the scheme's own power of amendment does not allow the change.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.