Couples of same-sex marriages may not have access to the same pension benefits as opposite-sex married couples, international law firm Freshfields Bruckhaus Deringer has said.

Counsel at the law firm Dawn Heath commented following a majority vote in the House of Commons in favour of the Marriage (Same Sex Couples) Bill.

Heath warned that pension schemes will be able to ignore same-sex marriages for the purposes of pension benefits accrued before 5 December 2005 – the day civil partnerships were introduced – with the exception of contracted-out benefits accrued after 1988.

She explained that some pension providers may be concerned that the bill could put an additional strain on schemes: “Treating same-sex marriages in the same way as opposite-sex marriages would require schemes to provide benefits which they were otherwise not expecting to provide. Schemes will have been funded based on an assumption of the number of members who would be married, with the necessary increase in that assumption if same-sex marriages are included, putting at least some additional funding strain on the scheme.”

However, she argued that these concerns make no sense: “The incremental cost must surely be minimal given the numbers of same-sex marriages expected. Secondly, successive governments in the past have had no qualms around legislating on pensions to increase the burden on employers in a financially far more material way. And finally, from a policy perspective, it seems illogical to proudly trumpet marriage equality whilst retaining the one substantive economic difference between marriage and civil partnership – particularly where the legality of that difference is under attack.

“The government’s vote in favour of marriage equality is to be welcomed but it should be a vote in favour of equality in all respects. That means looking again at the legislation to ensure pensions are treated in the same way for all.”

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