The Marriage Act 2013: A battle half won?

But equality of a legal kind does not necessarily equate to full equality, a dichotomy most strikingly seen in the perpetuation of restrictions on survivor's benefits from accrued pension pots of their same-sex partners.

Currently, pension schemes are not obliged to backdate a surviving spouse's pension rights beyond 5 December 2005 (when the Civil Partnership Act came into force). This effectively locks out gay men and women from passing on the benefits of their accrued pension pots to a spouse or civil partner, were they to die.

After an employment tribunal in 2012 ruled that his employer's pension scheme contravened European Union law and the European Convention on Human Rights, John Walker, an ex-cavalry officer, found his case overruled by the Employment Appeal Tribunal. His employer, Innospec, with support from the Department for Work and Pensions (DWP), successfully argued that an exemption in the Equality Act
2010 meant pension rights enshrined in the Civil Partnership Act did not apply retrospectively, and that his employer was therefore not obliged to pay out to his husband on pension he had accrued pre-2005.

Walker has now taken his case to the Court of Appeal, where he has argued the decision discriminates against him as a gay man, contravening his human rights, and breaching an EU directive on equal treatment in employment.

The DWP has been quick to point out that 'full equalisation' of pension schemes would cost in the region of £3.3bn, with many other unforeseen effects on the pension industry.

Writing in the Guardian in May 2013, Peter Tatchell summed up the issue rather well: 'The campaign for same-sex marriage has always been premised on the principle of equality, rather than support for marriage per se.' This strikes at the heart of the failings of the Marriage Act, which, by perpetuating pension inequality, exposes a deep-rooted discrimination against gay people in the UK, both at an institutional and societal level.

Walker's lawyers have pointed out that, if he were to divorce and marry a woman, she would be entitled to £41,000 per annum, were he to die before her. His husband, whom he has been with since 1983, is entitled to just 1 per cent of this figure.

Whatever the arguments around the complexities and costs of imposing this legislation retrospectively, there remains a glaring inequality at the heart of it, which at best will be seen by many in the LGBT community as a battle half won, and at worst an abject failure by the government to fully address institutionalised inequality and discrimination. SJ

Muna Saleem is an associate solicitor at Crisp & Co

@Crispo_co