Opposite-sex civil partnerships: the law has changed

Written on 28 Nov 2019

Same-sex couples have been able to form a civil partnership since December 2005. Today (2 December 2019), the law is changing to allow opposite-sex couples in England and Wales to form a civil partnership too. In this Insight, we look at what this change means for occupational pension schemes.

Why is the law changing?

In June 2018, the Supreme Court ruled that the provisions in the Civil Partnership Act 2004 restricting the option of forming a civil partnership to same-sex couples, were incompatible with the European Convention on Human Rights. The government pledged to change the law and the Civil Partnerships, Marriages and Deaths (Registration etc.) Act 2019 was adopted. This Act included a time-limited power to make regulations to extend civil partnership to opposite-sex couples. The Government Equalities Office consulted on the change and regulations extending civil partnership to opposite-sex couples were made on 5 November 2019. Those regulations come into force today (2 December 2019). 

What is changing?

The Civil Partnership (Opposite-sex Couples) Regulations 2019 amend section 1 of the Civil Partnership Act 2004 so that, instead of saying that “two people of the same sex” can form a civil partnership, it simply says that “two people” can form a civil partnership. They also update section 3, which relates to eligibility to form a civil partnership. These changes have the effect of allowing both same and opposite-sex couples to form a civil partnership.

There are still restrictions on who can form a civil partnership (degrees of relationship). The regulations also make related amendments, for example, to the law relating to recognition of similar relationships formed in other countries, parental status, parental responsibility and gender recognition and to a host of Acts and sets of regulations (including Pension Protection Fund and Financial Assistance Scheme regulations).

However, the amendments to sections 1 and 3 of the Civil Partnership Act 2004 are the key ones. 

What do pension schemes need to do? 

For pension schemes, the next steps depend on whether the scheme is a public sector scheme, or a private sector one.

Private sector schemes need to take legal advice on how this change in the law affects them and, in particular, as to whether they need to amend their rules in order to provide the right benefits for the survivors of opposite-sex civil partners. This is also a good opportunity to check that the scheme is providing the right benefits for all civil partners and married couples following the Supreme Court’s decision in Walker v Innospec Ltd and others and the government’s final response to the 2014 Survivor Benefits Review.

Public sector schemes should also take advice. The regulations contain specific provisions relating to some public sector schemes and there is a separate set of regulations relating to the Local Government Pension Scheme. 

Osborne Clarke comment

From today, same and opposite-sex couples will have access to the same options for registering their relationship: marriage and civil partnership. The trustees and employers of pension schemes need to review their scheme rules and decide what to say to members. In particular, the trustees of private sector pension schemes need to discuss this change with the scheme actuary and take legal advice on whether any changes are needed to the scheme rules. They also need to decide how to communicate these changes (or, if no change is needed, the survivor benefits that are available to opposite-sex civil partners) to members.