Marriage and civil partnership 




To be protected because of marriage (heterosexual or same-sex) or civil partnership, an individual must be married or have a civil partner. Civil partnerships are now lawful throughout the United Kingdom. Same-sex marriage is lawful in England, Wales and Scotland, but not Northern Ireland. In Close & Ors, Re Judicial Review [2017] NIQB 79, the Northern Ireland High Court ruled that the issue of same-sex marriage in Northern Ireland is a political matter, to be resolved by the Northern Ireland Assembly, not the courts. 




Someone who intends to marry or enter into a civil partnership but has not yet done so is not protected by the EA 10. Neither is someone who is cohabiting, widowed, single, engaged or divorced (section 8, EA 10). 


The protection is against discrimination linked to the status or “institution” or sanctity of marriage or civil partnership, as opposed to because you are married to a particular person (Hawkins v Atex Group Limited [2011] UKEAT0302/11/1303). 


In Gould v Trustees of St John’s Downshire Hill [2017] UKEAT/0135/17/DA, the EAT ruled that there could be marital status discrimination when an evangelical church dismissed a priest because his own marital difficulties clashed with the congregation’s ideas about the institution of marriage. 


Same-sex married couples and same-sex couples in a civil partnership now have all the same legal rights as married heterosexual couples, including as to pensions. In Walker v Innospec Limited [2017] UKSC 47, the Supreme Court has ruled that same-sex married couples and civil partners have all the same pension survivorship rights as heterosexual married couples. This ruling abolished an exemption under the EA 10 concerning occupational pension survivorship benefits. That exemption had stated that it was not sexual orientation discrimination to deny civil partners and same-sex marriage partners pension survivorship benefits built up before 5 December 2005 (the date the Civil Partnerships Act 2004 came into force). This exclusion, found in paragraph 18, Schedule 8 of the EA 10, has been declared incompatible with EU law. 


Another important recent ruling, again involving pension equality, concerned a heterosexual couple who consciously decided not to marry, one of whom died unexpectedly without making a will or nominating his partner as the beneficiary of his pension. In Re Brewster’s Application for Judicial Review [2017] UKSC 8, the Supreme Court decided that a requirement for one partner in an unmarried couple to nominate their partner to trigger pension rights under the Northern Ireland local government pension scheme (a requirement not imposed on married couples) was a breach of human rights. The decision impacts on any unmarried couple with a pension scheme that contains this kind of nomination requirement. (The decision is also a good reminder of the importance of ensuring any pension nomination is complete and up-to-date.) 


In Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81, the Court of Appeal has refused to extend the right to enter into a civil partnership to heterosexual couples. The case is under appeal to the Supreme Court, to be heard later in 2018.