Pensions | Court of Appeal rules on benefits for unmarried partners

Written on 1 Aug 2019

In a unanimous judgment, the Court of Appeal has decided that a scheme rule which provides death benefits to the unmarried partner of a scheme member, but excludes unmarried partners who are still legally married to another person, amounts to unlawful discrimination which, on the facts of that case, “cannot be justified or proportionate”. In this insight, we discuss the decision in Langford v The Secretary of State for Defence. We also look at whether the decision could affect other schemes.

What was the case about?

The case relates to an Armed Forces compensation scheme which provides benefits, on the death of a member or former member, to a surviving spouse, surviving civil partner, or “surviving adult dependant“. To qualify for benefits as a “surviving adult dependant”, a number of conditions must be met. These include requirements that, at the time of the member or former member’s death:

  • “the person and the deceased were not prevented from marrying or forming a civil partnership”; and
  • “the person and the deceased were cohabiting as partners in a substantial and exclusive relationship”.

There are a number of tests for a “substantial and exclusive relationship“. However, a relationship cannot be “substantial and exclusive” if either or both of the parties is “married to, or … the civil partner of, someone other than the other party to the relationship”.

Mrs Langford applied for benefits following the death of her partner, Air Commodore Green. When Air Commodore Green died, the couple had been living together for a number of years. They had also declared publicly their intention to marry and started to investigate a divorce for Mrs Langford, who was married, but been estranged from her husband for about 17 years.

Because Mrs Langford was still married, she did not meet the two conditions set out above. She was not free to marry and she did not meet the scheme’s definition of “substantial and exclusive relationship” because she was still married to her estranged husband.

Mrs Langford complained that these conditions discriminated against her, contrary to Article 14 of the European Convention on Human Rights and Fundamental Freedoms and Article 1 of Protocol 1 to that Convention: enjoyment of fundamental rights and freedoms without discrimination and peaceful enjoyment of possessions.

What did the Court of Appeal decide and why?

The Court of Appeal upheld Mrs Langford’s appeal. It ruled that providing benefits for unmarried partners but excluding unmarried partners who are still legally married to someone else is unlawful discrimination which “cannot be justified or proportionate in Mrs Langford’s case“.

The Secretary of State for Defence had argued that the relevant rules had been introduced for three reasons.

The first reason was to ensure that married and unmarried partners of scheme members were treated equally. Unmarried partners should not qualify for benefits if they are still married to someone other than the member because a spouse or civil partner would not qualify in those circumstances: “as a matter of law, an individual [cannot] be the lawful spouse of a scheme member if he or she [is] already married to someone else“. The Court accepted that equal treatment of married and unmarried partners was a legitimate aim, but ruled that it could be achieved by requiring unmarried partners to be in a “substantial, exclusive and financially dependent” relationship. Excluding unmarried partners who were in an exclusive relationship but still legally married to a former partner did not help. It just seemed to introduce discrimination as between different classes of unmarried partners.

The second reason put forward by the Secretary of State for Defence was to prevent a surviving partner from receiving two benefits (spouse’s and surviving partner’s) if they are also married to a member of the same scheme, or to a member of another public service pension scheme. Again, the Court thought that this could be achieved by requiring the surviving partner (in this case, Mrs Langford) to provide evidence that their estranged spouse was not a member of the scheme, or of any other public service pension scheme.

The third reason was avoid an increase in cost and administrative burden. The Court did not feel that any evidence had been put forward on this point.

How does the Court of Appeal’s decision affect other schemes?

The Court of Appeal stopped short of saying that not providing death benefits to the unmarried partners of scheme members in cases where the surviving partner is still legally married to another person, would always be unlawful. It said: “We have been dealing with [Mrs Langford’s] case and her case alone. I would not exclude the possibility that, in other cases (perhaps in relation to other public service pension schemes) it might be possible, on material adduced at the proper stage of the proceedings, for an exclusionary rule of this character to be justified and proportionate. I do not say that it would be possible; I simply do not rule out the possibility…”.

This suggests that there might be room for other schemes, which have similar rules, to reach a different outcome. This might be, for example, because of a different approach to argument (the procedural background of the Langford case is complicated) and/or the particular background or circumstances of the scheme.

Osborne Clarke comment

The decision in this case is relevant to any pension scheme (in the public or private sector) which provides death benefits to the unmarried partner of a scheme member, but not if the unmarried partner is still married to another person. It is not clear whether the decision will be appealed. However, schemes which have a rule of this kind may wish to discuss the decision with us.