The Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014
S.I. 2014/560 · Made 6 March 2014 · Extends to United Kingdom
Marriage
Civil Partnership
Human Fertilisation And Embryology
Made 6th March 2014
Coming into force in accordance with article 1(2) and (3)
In accordance with section 18(11)(a) of the Marriage (Same Sex Couples) Act 2013, the Secretary of State has obtained the consent of the Scottish Ministers to the making of article 5 of, and paragraph 31 of Schedule 1 to, this Order.
This Order is made in exercise of the powers conferred by sections 17(2), (3) and 18(10) of, and paragraph 1(1) of Schedule 2 and paragraph 27(3)(a) and (b) of Schedule 4 to, the Marriage (Same Sex Couples) Act 2013, and in exercise of the powers conferred by section 259(1) and (3) of the Civil Partnership Act 2004 and by section 64(1) and (2) of the Human Fertilisation and Embryology Act 2008.
The Secretary of State, in exercise of those powers, makes the following Order:
Annotations to the whole text
Footnotes
- f1
- f2
- f3
Contents
- 1Citation, commencement and interpretation
- 2Consequential amendments to Acts of Parliament
- 3Contrary provision to section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act
- 4Consequential amendments to enactments etc. as a result of contrary provision made by Schedule 2
- 5Scotland Repealed
- 6Extent
- Signature
- Schedule 1: Consequential Amendments to Primary Legislation
- 1Metropolitan Public Carriage Act 1869
- 2Pensions Commutation Act 1871
- 3Local Government (Emergency Provisions) Act 1916
- 4Population (Statistics) Act 1938
- 5Marriage Act 1949
- 6Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951
- 7Births and Deaths Registration Act 1953
- 8Registration of Births, Deaths and Marriages (Special Provisions) Act 1957
- 9Transport Act 1962
- 10Harbours Act 1964
- 11Sharing of Church Buildings Act 1969
- 12Consumer Credit Act 1974
- 13Social Security Pensions Act 1975
- 14Fatal Accidents Act 1976
- 15Legitimacy Act 1976
- 16Rent Act 1977
- 17Transport Act 1978
- 18Pneumoconiosis etc. (Workers’ Compensation) Act 1979
- 19Family Law Reform Act 1987
- 20Housing Act 1988
- 21Child Support Act 1991
- 22Social Security Contributions and Benefits Act 1992
- 23Social Security Administration Act 1992
- 24Trade Union and Labour Relations (Consolidation) Act 1992
- 25Pension Schemes Act 1993
- 26Jobseekers Act 1995
- 27Pensions Act 1995
- 28State Pension Credit Act 2002
- 29Civil Partnership Act 2004
- 30Mental Capacity Act 2005
- 31Family Law (Scotland) Act 2006
- 32Welfare Reform Act 2007
- 33Statistics and Registration Service Act 2007
- 34Welfare Reform Act 2009
- 35Equality Act 2010
- 36Welfare Reform Act 2012
- Schedule 2: Contrary provision to section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act
- Part 1: Common law
- 1Provision disapplying the effect of section 11(1) and (2) of the Act in respect of the common law
- 2Provision disapplying the effect of section 11(1) and (2) of the Act in respect of the common law
- Part 2: EU instruments
- 3Provision disapplying the effect of section 11(1) and (2) of the Act in respect of EU instruments
- Part 3: Enactments etc. (general)
- 4Provision to which section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act are subject
- 5Provision disapplying the effect of section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act in respect of enactments
- Schedule 3: Consequential amendments to enactments etc. as a result of contrary provision made by Schedule 2
- Part 1: Enactments (general)
- 1Pensions (Increase) Act 1971
- 2Social Security Pensions Act 1975
- 3Pensions Increase (Review) Orders 1979 to 1990
- 4Social Security Contributions and Benefits Act 1992
- 5Occupational Pension Schemes (Contracting-out) Regulations 1996
- 6Occupational Pension Schemes (Modification of Schemes) Regulations 2006
- Part 2: Enactments etc. (public service pension schemes)
- 7Armed Forces Pension Scheme Order 2005
- 8Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010
- 9Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010
- 10Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010
- 11Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010
- 12Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010
- 13Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010
- 14Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010
- 15Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010
- 16Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010
- 17Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010
- Explanatory note
1Citation, commencement and interpretationI1
This Order may be cited as the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014.
Subject to paragraph (3), this Order comes into force on 13th March 2014.
The amendment made to the Family Law (Scotland) Act 2006f1 at paragraph 31 of Schedule 1 comes into force on 3rd June 2014.
In this Order—
“the Act” means the Marriage (Same Sex Couples) Act 2013; and
“the 2004 Act” means the Civil Partnership Act 2004.
2Consequential amendments to Acts of ParliamentI1
Schedule 1 to this Order (which amends primary legislation in consequence of the Act, the 2004 Act and the Human Fertilisation and Embryology Act 2008) has effect.
3Contrary provision to section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the ActI1 E+W
Schedule 2 to this Order (which makes provision to which section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act are subject and which disapplies that section and those paragraphs in specified cases) has effect.
4Consequential amendments to enactments etc. as a result of contrary provision made by Schedule 2I1 E+W
Schedule 3 to this Order (which makes amendments to enactments etc. in consequence of the provision made by Schedule 2 to this Order) has effect.
5ScotlandF1 E+W+S
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6ExtentI1
Subject to paragraphs (2) to (4), this Order extends to England and Wales only.
The amendment to the Family Law (Scotland) Act 2006 at paragraph 31 of Schedule 1, and article 2 so far as it relates to that paragraph, extend to Scotland only.
The following provisions extend also to Scotland—
article 1,
the amendment to the 2004 Act at paragraph 29(1) and (2) of Schedule 1, and article 2 so far as it relates to that paragraph,
article 5, and
this article.
The following provisions extend also to Northern Ireland—
article 1,
the amendment to the 2004 Act at paragraph 29(1) and (2) of Schedule 1, and article 2 so far as it relates to that paragraph, and
this article.
Signature
Maria Miller
Secretary of State for Culture, Media and Sport and
Minister for Women and Equalities
6th March 2014
1Metropolitan Public Carriage Act 1869I1 E+W
In section 6 of the Metropolitan Public Carriage Act 1869f1 (grant of hackney carriage licences)—
in subsection (9)(a)—
for “widow” in both places it occurs, substitute “surviving spouse or surviving civil partner”, and
omit “and”, and
omit subsection (9)(b).
2Pensions Commutation Act 1871I1C1 E+W+N.I.
In section 4 of the Pensions Commutation Act 1871f1 (power to Treasury to commute pensions), for subsection (2) substitute—
“(2)Where any officer in the naval or land forces of Her Majesty whose pension has been commuted under this Act subsequently marries or forms a civil partnership, the officer’s surviving spouse or surviving civil partner shall not be entitled to any pension, and a child of any such officer born after the date of the commutation of the pension shall not be entitled to compassionate allowance:”.
3Local Government (Emergency Provisions) Act 1916I1C1 E+W+N.I.
For section 2 of the Local Government (Emergency Provisions) Act 1916f1 (payments under superannuation schemes) substitute—
“If an officer or servant of a local authority dies whilst serving in or with His Majesty’s forces, or in consequence of wounds or disease received or contracted during such service which prevented that person from returning to the service of the local authority, the local authority shall have, and shall be deemed always to have had, power to make to that person’s surviving spouse, surviving civil partner or other dependants, such payments as could have been made to them under any superannuation scheme (whether established by statute or otherwise) in force in the district had that person been actually serving the local authority at the time of death.”.
4Population (Statistics) Act 1938I1 E+W
For paragraph 1(d) of the Schedule to the Population (Statistics) Act 1938f1 (particulars which may be required to be provided to registration officer) substitute—
“(d)where the birth is of a child to whom section 1(3) of that Act applies by reason of any marriage or civil partnership between the child’s parents—
(i)the date of the marriage or formation of the civil partnership, and
(ii)whether before she married, or formed the civil partnership with, the child’s other parent, the mother had been married to, or had formed a civil partnership with, any other person;”.
5Marriage Act 1949I1 E+W
The Marriage Act 1949f1 is amended as follows.
In section 28f2 (declaration to accompany notice of marriage), in subsection (1)(c), for “or widow” substitute “, widow or surviving civil partner”.
After section 42(3)f3 (cancellation of registration of building) insert—
“(3A)In a case where—
(a)the registration of a building is cancelled under this section, and
(b)the building is also registered under section 43A,
the Registrar General must also cancel the registration under section 43A.”.
In section 49Af4 (which provides marriages of same sex couples may be void in the absence of the required consent), in subsection (2), after paragraph (b) insert—
“(ba)section 26A(3) and under any regulations made under section 44C that require the consent to use of a building for the solemnization of marriages of same sex couples, in a case where section 26A and section 44C apply to the marriage;”.
6Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951I1 E+W
In the closing words of section 46(3) of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951f1 (payments to make up civil remuneration), for “his widow” substitute “that person’s surviving spouse, surviving civil partner”.
7Births and Deaths Registration Act 1953I1 E+W
In the heading to section 10 of the Births and Deaths Registration Act 1953f1 (registration of father or of second female parent where parents neither married nor civil partners), before “civil partners” insert “married or”.
8Registration of Births, Deaths and Marriages (Special Provisions) Act 1957I1 E+W
In section 5(3) of the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957f1 (registration of births of legitimated persons in the service departments registers), in paragraph (b), for “is” substitute “includes”.
9Transport Act 1962I1 E+W
In section 65(5) of the Transport Act 1962f1 (railway savings banks), for the words “is a man” to the end substitute “is a person who dies leaving a surviving spouse or surviving civil partner, that survivor for so long as that survivor does not subsequently marry, enter into a civil partnership or die.”.
10Harbours Act 1964I1 E+W
In section 18(2) of the Harbours Act 1964f1 (harbour reorganisation schemes), in paragraph (h), after “spouses” in both places it occurs, insert “, civil partners”.
11Sharing of Church Buildings Act 1969I1 E+W
Schedule 1 to the Sharing of Church Buildings Act 1969f1 (modifications of application of Marriage Act 1949 to shared church building to which sharing agreement relates) is amended as follows.
In paragraph 3, after “building” insert “which is registered under section 41 of the Act, and”.
After paragraph 3 insert—
“3A.Subject to the provision made by sections 44A to 44C of the Act and any regulations made under those sections, where a sharing Church withdraws from the sharing of a registered church building which is registered under section 43A of the Act, and which continues to be used by another Church other than the Church of England, the registration shall not be cancelled.”.
In paragraph 4, after “section 43(1)” insert “or section 43B(1)”.
In paragraph 5—
for the words from “The proviso” to “which prescribes” substitute “Sections 43(1A) and 43B(3) of the Act, both of which prescribe”,
after “paragraph 3” insert “or 3A”, and
for the “said proviso” substitute “section 43(1A) or 43B(3)”.
12Consumer Credit Act 1974I1 E+W
In section 16C(4) of the Consumer Credit Act 1974f1 (exemption relating to investment properties), for paragraph (b) substitute—
“(b)a person whose relationship with that person has the characteristic of the relationship between two people who are married; or”.
13Social Security Pensions Act 1975I1 E+W
14Fatal Accidents Act 1976I1 E+W
In section 1(5) of the Fatal Accidents Act 1976f1 (right of action for wrongful act causing death), for paragraph (b) substitute—
“(b)an illegitimate person shall be treated as—
(i)the legitimate child of his mother and reputed father, or
(ii)in the case of a person who has a female parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, the legitimate child of his mother and that female parent.”.
15Legitimacy Act 1976I1 E+W
The Legitimacy Act 1976f1 is amended as follows.
For section 1(2) (legitimacy of children of certain void marriages) substitute—
“(2)This section only applies where—
(a)the father of the child was domiciled in England and Wales at the time of the birth, or if he died before the birth, was so domiciled immediately before his death, or
(b)if a woman is treated as the female parent of a child by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that female parent was domiciled in England and Wales at the time of the birth, or if she died before the birth, was so domiciled immediately before her death.”.
In section 2 (subsequent legitimation of child), in the heading and in the section, for “parents” in both places it occurs, substitute “mother and father”.
In section 2Af2(subsequent legitimation of child)—
in the heading after “subsequent” insert “marriage or”,
in paragraph (b) for “not” substitute “neither married nor”,
in paragraph (c) after “subsequently” insert “marry or”,
in paragraph (d) after “date of” insert “the marriage or”, and
in the closing words—
at the beginning insert “the marriage or”, and
after “date of” insert “the marriage or”.
In section 3f3 (legitimation by extraneous law)—
in subsection (1) for “parents” substitute “mother and father”, and
in subsection (2)—
in paragraph (b) for “not” substitute “neither married nor”,
in paragraph (c) after “subsequently” insert “marry or”,
in paragraph (d)—
after “time of” insert “the marriage or”, and
before the second “civil partnership” insert “marriage or”, and
in the closing words—
after “date of the” insert “marriage or”, and
after “subsequent” insert “marriage or”.
16Rent Act 1977I1 E+W
In paragraph 2(3) of Schedule 1 to the Rent Act 1977f1 (statutory tenants by succession), for the word “treated” to the end substitute “treated as the tenant’s spouse, or if that person is the same sex as the tenant, and falls within paragraph 2(2)(b) of this Schedule, as the tenant’s civil partner.”.
17Transport Act 1978I1C1 E+W+N.I.
In section 21 of the Transport Act 1978f1 (travel concessions for transferred employees), for “widows” substitute “surviving spouses, surviving civil partners”.
18Pneumoconiosis etc. (Workers’ Compensation) Act 1979I1 E+W
In section 3 of the Pneumoconiosis etc. (Workers’ Compensation) Act 1979f1 (dependants)—
for subsection (2A) substitute—
“(2A)For the purposes of subsection (1)(c) two persons are in a qualifying relationship if they are living together as a married couple.”, and
omit subsection (2B).
19Family Law Reform Act 1987I1 E+W
In section 1(3) of the Family Law Reform Act 1987f1 (general principle of construction as to family relationships)—
in paragraph (ba)—
before “a party to” insert “married to a woman or”, and
after “void” insert “marriage or”,
in paragraph (bb)(i), after “is” insert “married to or”, and
in paragraph (bb)(ii), after “was” insert “married to or”.
20Housing Act 1988I1 E+W
In section 17(5) of the Housing Act 1988f1 (succession to assured tenancy), for the word “treated” to the end substitute “treated as the tenant’s spouse, or if that person is the same sex as the tenant, and falls within subsection (4)(b), as the tenant’s civil partner.”.
21Child Support Act 1991I1 E+W
The Child Support Act 1991f1 is amended as follows.
In Schedule 1f2 (maintenance assessments), as that Schedule has effect otherwise than by virtue of section 1(3) of, and Schedule 1 to, the Child Support, Pensions and Social Security Act 2000f3, in Part 1 (calculation of child support maintenance), in paragraph 6 (protected income)—
in sub-paragraph (5)(b)f4, for sub-paragraphs (i) to (iii) substitute—
“(i)is living together in the same household with another adult who is his or her spouse or civil partner, or
(ii)is living together in the same household with another adult as if they were a married couple,”, and
omit sub-paragraph (5A)f5.
In Schedule 1 (maintenance calculations), as that Schedule has effect by virtue of section 1(3) of, and Schedule 1 to, the Child Support, Pensions and Social Security Act 2000, in Part 1 (calculation of weekly amount of child support maintenance), in paragraph 10C (references to various terms)—
for sub-paragraph (5)f6 substitute—
“(5)In sub-paragraph (4)(a), “couple” means—
(a)two people who are married to, or civil partners of, each other and are members of the same household, or
(b)two people who are not married to, or civil partners of, each other but are living together as a married couple.”, and
omit sub-paragraph (6).
22Social Security Contributions and Benefits Act 1992I1 E+W
The Social Security Contributions and Benefits Act 1992f1 is amended as follows.
For section 36(2)f2 (bereavement payment) substitute—
“(2)A bereavement payment shall not be payable to a person if that person and a person whom that person was not married to, or in a civil partnership with, were living together as a married couple at the time of the spouse’s or civil partner’s death.”.
In section 37(4)f3 (widowed mother’s allowance), after paragraph (a) insert “or” and for paragraphs (b) and (c) substitute—
“(b)for any period during which she and a person whom she is not married to, or in a civil partnership with, are living together as a married couple.”.
In section 38(3)f4 (widow’s pension), after paragraph (b) insert “or” and for paragraphs (c) and (d) substitute—
“(c)for any period during which she and a person whom she is not married to, or in a civil partnership with, are living together as a married couple.”.
In section 39A(5)f5 (widowed parent’s allowance), after paragraph (a) insert “or” and for paragraphs (b) and (c) substitute—
“(b)for any period during which the surviving spouse or civil partner and a person whom she or he is not married to, or in a civil partnership with, are living together as a married couple.”.
In section 39B(5)f6 (bereavement allowance where no dependent children), after paragraph (a) insert “or” and for paragraphs (b) and (c) substitute—
“(b)for any period during which the surviving spouse or civil partner and a person whom she or he is not married to, or in a civil partnership with, are living together as a married couple.”.
In section 122 (interpretation of Parts 1 to 6 and supplementary provisions), omit subsection (1A)f7.
In section 137f8 (interpretation of Part 7 and supplementary provisions)—
in subsection (1), for the definition of “couple” substitute—
““couple” means—
- (a)
two people who are married to, or civil partners of, each other and are members of the same household; or
- (b)
two people who are not married to, or civil partners of, each other but are living together as a married couple otherwise than in prescribed circumstances;”, and
omit subsection (1A).
In Schedule 7 (industrial injuries benefits)—
in paragraph 4(3)(a)f9 (increase for beneficiary’s dependent children and qualifying young persons), after sub-paragraph (i) insert “or” and for sub-paragraphs (ii) and (iii) substitute—
“(ii)two people who are not married to, or civil partners of, each other but are living together as a married couple, and”, and
in paragraph 15(3)f10 (widow’s benefit (entitlement)), for the words from “husband and wife” to the end substitute “a married couple with a person whom she is not married to or in a civil partnership with.”.
23Social Security Administration Act 1992I1 E+W
In section 15A of the Social Security Administration Act 1992f1 (payment out of benefit of sums in respect of mortgage interest etc.)—
in subsection (4)f2, in paragraph (b) of the definition of “partner”, for “husband and wife or as if they were civil partners” substitute “if they were a married couple”, and
omit subsection (4B)f3.
24Trade Union and Labour Relations (Consolidation) Act 1992I1 E+W
In section 38(1) of the Trade Union and Labour Relations (Consolidation) Act 1992f1 (members’ superannuation schemes: separate fund to be maintained), in paragraph (a), after “widows’” insert “, widowers’, surviving civil partners’’”.
25Pension Schemes Act 1993I1 E+W
26Jobseekers Act 1995I1 E+W
Section 35 of the Jobseekers Act 1995f1 (interpretation) is amended as follows.
In subsection (1), for the definition of “couple” substitute—
““couple” means—
- (a)
two people who are married to, or civil partners of, each other and are members of the same household; or
- (b)
two people who are not married to, or civil partners of, each other but are living together as a married couple otherwise than in prescribed circumstances;”.
Omit subsection (1A).
27Pensions Act 1995I1 E+W
In section 124(1) of the Pensions Act 1995f1 (interpretation of Part 1), omit the definition of “civil partnership status”.
28State Pension Credit Act 2002I1 E+W
Section 17 of the State Pension Credit Act 2002f1 (other interpretation provisions) is amended as follows.
In subsection (1), for the definition of “couple” substitute—
““couple” means—
- (a)
two people who are married to, or civil partners of, each other and are members of the same household; or
- (b)
two people who are not married to, or civil partners of, each other but are living together as a married couple otherwise than in prescribed circumstances;”.
Omit subsection (1A).
29Civil Partnership Act 2004I1
The 2004 Actf1 is amended as follows.
In section 212 (meaning of “overseas relationship”), after subsection (1) insert—
“(1A)But, for the purposes of the application of this Act to England and Wales, marriage is not an overseas relationship.”.
In each of paragraphs 5 (declaration) and 11 (declaration) of Schedule 2 (civil partnerships of persons under 18: England and Wales), after “civil partner” insert “, widow or widower”.
30Mental Capacity Act 2005I1 E+W
In paragraph 185 of Schedule A1 to the Mental Capacity Act 2005f1 (interpretation), for sub-paragraphs (b) and (c) substitute—
“(b)where the relevant person and another person are not married to each other, nor in a civil partnership with each other, but are living together as if they were a married couple: that other person;”.
31Family Law (Scotland) Act 2006I1 E+W+S
In section 38(1) of the Family Law (Scotland) Act 2006f1 (validity of marriages), for “the Foreign Marriage Act 1892 (c. 23)” substitute “section 13(1) of, and Schedule 6 to, the Marriage (Same Sex Couples) Act 2013 and any Orders in Council made under that Schedule”.
32Welfare Reform Act 2007I1 E+W
Paragraph 6 of Schedule 1 to the Welfare Reform Act 2007f1 (income-related allowance) is amended as follows.
In sub-paragraph (5), for the definition of “couple” substitute—
““couple” means—
- (a)
two people who are married to, or civil partners of, each other and are members of the same household; or
- (b)
two people who are not married to, or civil partners of, each other but are living together as a married couple otherwise than in prescribed circumstances;”.
Omit sub-paragraph (6).
33Statistics and Registration Service Act 2007I1 E+W
In section 42(2) of the Statistics and Registration Service Act 2007f1 (information relating to births and deaths etc.), after paragraph (e) insert—
“(f)any other information received by the Registrar General in relation to any marriage or civil partnership.”.
34Welfare Reform Act 2009I1 E+W
In paragraph 2(2) of Schedule 6 to the Welfare Reform Act 2009f1, before “civil partners” insert “married or”.
35Equality Act 2010I1 E+W
The Equality Act 2010f1 is amended as follows.
In section 67 (sex equality rule), for subsection (7) substitute—
“(7)If the effect of a relevant matter on a person (A) differs according to the effect it has on a person of the same sex as A, according to whether A is married, in a civil partnership, or for some other reason due to A’s family status, a comparison for the purposes of this section of the effect of that matter on persons of the opposite sex must be with a person of the opposite sex to A who is in the same position as A and in particular—
(a)where A is married to someone of the opposite sex, A is to be compared to a person of the opposite sex to A (“B”) where B is married to someone of the opposite sex to B;
(b)where A is married to someone of the same sex as A or is in a civil partnership, A is to be compared to B where B is married to someone of the same sex as B or is in a civil partnership.”.
Omit section 80(7) (interpretation and exceptions).
36Welfare Reform Act 2012I1 E+W
Section 39 of the Welfare Reform Act 2012f1 (couples) is amended as follows.
For subsection (1) substitute—
“(1)In this Part “couple” means—
(a)two people who are married to, or civil partners of, each other and are members of the same household; or
(b)two people who are not married to, or civil partners of, each other but are living together as a married couple.”.
Omit subsection (2).
In subsection (3)—
in paragraph (a), for “husband and wife” substitute “married”, and
in paragraph (b), for “a man and woman are to be treated as living together as husband and wife” substitute “two people are to be treated as living together as a married couple”.
1Provision disapplying the effect of section 11(1) and (2) of the Act in respect of the common lawI1 E+W
Section 11(1) and (2) of the Act does not apply to the common law concerning the right of a person—
who marries, or who is married to, the King Regnant, to the title of Queen, or
who marries, or who is married to, the Prince of Wales, to the title of Princess of Wales.
2Provision disapplying the effect of section 11(1) and (2) of the Act in respect of the common lawI1 E+W
Section 11(1) and (2) of the Act does not apply to the common law concerning the acquisition of a right to, or interest in, a peerage, and all titles, rights, offices, privileges and precedence attaching to it, by a person who marries or who is married to a peer holding that peerage.
3Provision disapplying the effect of section 11(1) and (2) of the Act in respect of EU instrumentsI1 E+W
Section 11(1) and (2) of the Act does not apply to EU instruments.
4Provision to which section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act are subjectI1 E+W
Section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act have effect subject to sub-paragraph (2).
In the calculation of the amount of death benefits payable under rules E.3(6)(a), E.4(3)(a) and E.5(3)(a) in Part E of Schedule 1 to the Armed Forces Pension Scheme Order 2005f1, a surviving spouse who was married to someone of the same sex is to be treated in the same way as the surviving civil partner of a civil partnership.
5Provision disapplying the effect of section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act in respect of enactmentsI1 E+W
Section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act do not apply to—
the Statute of Westminster the Second 1285f1,
the Quia Emptores 1289f2,
the Treason Act 1351f3,
chapter 2 of the Statute the Fifthf4,
the Crown Private Estate Act 1800f5,
the Fines and Recoveries Act 1833f6,
section 10 of the Married Women’s Property Act 1882f7,
section 3 of the Married Women’s Property Act 1893f8,
section 3 of the Married Women’s Property Act 1907f9,
sections 1(3) and 25(1) of the Settled Land Act 1925f10,
section 47 of the Criminal Justice Act 1925f11,
section 60 of the Government Annuities Act 1929f12,
the War Pensions (Coastguards) Scheme 1944f13,
the Civil Aviation (Births, Deaths and Missing Persons) Regulations 1948f14,
the Airways Corporations (General Staff Pensions) Regulations 1948f15,
the Airways Corporations (Pilots Pensions) Regulations 1951f16,
the Airways Corporations (Radio, Navigating and Engineer Officers Pensions) Regulations 1953f17,
the Airways Corporations (General Staff, Pilots and Officers Pensions) (Amendment) Regulations 1957f18,
the Greenwich Hospital (Widows’ Pensions and Dependants’ Gratuities) Order 1960f19,
the British Transport Reorganisation (Pensions of Employees) (No. 2) Order 1962f20,
the Air Corporations (General Staff, Pilots and Officers Pensions) (Amendment) (No. 2) Regulations 1963f21,
the Air Corporations (General Staff, Pilots and Officers Pensions) (Amendment) Regulations 1967f22,
the Harbour Reorganisation (Compensation to Employees) Regulations 1967f23,
the Port of London Act 1968f24,
the British Transport (Compensation to Employees) Regulations 1970f25,
the London Transport (Compensation to Employees) Regulations 1970f26,
sections 1, 3(7)(a), 6 and the definition of “widow’s pension” in section 17(1) of the Pensions (Increase) Act 1971f27,
the Transport Holding Company (Compensation to Employees) Regulations 1972f28,
section 59(5ZB)(a) and (b) and (5ZC)(a) of the Social Security Pensions Act 1975f29,
the Vehicle and Driving Licences (Compensation to Officers) Regulations 1977f30,
articles 2 and 3 of the Pensions Increase (Review) Order 1979f31,
the Greater London Council Housing (Compensation) Regulations 1980f32,
the National Freight Corporation (Central Trust) (Amendment) Order 1980f33,
articles 2 and 3 of the Pensions Increase (Review) Order 1980f34,
articles 2 and 3 of the Pensions Increase (Review) Order 1981f35,
articles 2 and 3 of the Pensions Increase (Review) Order 1982f36,
articles 2 and 3 of the Pensions Increase (Review) Order 1983f37,
articles 2 and 3 of the Pensions Increase (Review) Order 1984f38,
articles 2 and 3 of the Pensions Increase (Review) Order 1985f39,
articles 2 and 3 of the Pensions Increase (Review) Order 1986f40,
articles 2 and 3 of the Pensions Increase (Review) Order 1987f41,
the Judicial Pensions (Widows’ and Children’s Benefits) Regulations 1987f42,
articles 2 and 3 of the Pensions Increase (Review) Order 1988f43,
articles 2 and 3 of the Pensions Increase (Review) Order 1989f44,
articles 2 and 3 of the Pensions Increase (Review) Order 1990f45,
the Judicial Pensions (Widowers’ and Children’s Benefits) Regulations 1991f46,
the Firefighters’ Pension Scheme set out in Schedule 2 to the Firemen’s Pension Scheme Order 1992 as it has effect in Englandf51,
the Firefighters’ Pension (Wales) Scheme set out in Schedule 2 to the Firemen’s Pension Scheme Order 1992 as it has effect in Walesf52,
the Railways Pension Scheme Order 1994f53,
the Railway Pensions (Transfer and Miscellaneous Provisions) Order 1994f54,
the British Coal Staff Superannuation Scheme (Modification) Regulations 1994f55,
the Mineworkers’ Pension Scheme (Modification) Regulations 1994f56,
the Industry-Wide Coal Staff Superannuation Scheme Regulations 1994f57,
the Industry-Wide Mineworkers’ Pension Scheme Regulations1994f58,
regulations 55(1) and 69B(3)(c) and (d) of the Occupational Pension Schemes (Contracting-out) Regulations 1996f59,
the Local Government Pension Scheme Regulations 1997f60,
the Transport Act 2000 (Civil Aviation Authority Pension Scheme) Order 2001f61,
section 299 of the Pensions Act 2004f62 and the relevant provisions of the reciprocal agreement with Australia (within the meaning of that section) as continued in force by that section,
regulations 3(i) and 7(1) of the Occupational Pension Schemes (Modification of Schemes) Regulations 2006f63,
the New Firefighters’ Pension Scheme (England)f64,
the New Firefighters’ Pension Scheme (Wales)f65,
the Teachers’ Pensions Regulations 2010f66,
Schedule 1, Part E, rule E.1, paragraphs (3)(c) and (5)(c) and rule E.6, paragraph (1)(d) and Schedule 2, Part C, rule C.2, paragraphs (a) and (b) and Part D, rule D.1(3) to the Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010f67,
Schedule 1, Part E, rule E.1, paragraphs (3)(c) and (5)(c) and rule E.6, paragraph (1)(d) and Schedule 2, Part C, rule C.2, paragraphs (a) and (b) and Part D, rule D.1(3) to the Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010f68,
Schedule 1, Part E, rule E.1, paragraphs (3)(c) and (5)(c) and rule E.6, paragraph (1)(d) and Schedule 2, Part C, rule C.2, paragraphs (a) and (b) and Part D, rule D.1(3) to the Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010f69, and
the Royal Mail Statutory Pension Schemef70.
1Pensions (Increase) Act 1971I1C1 E+W+N.I.
The Pensions (Increase) Act 1971 is amended as follows.
In section 3(7) (qualifying conditions), in paragraph (a), for “husband’s” substitute “male spouse’s”.
In section 17(1) (interpretation), in the definition of “widow’s pension”—
in the opening words after “payable” insert “to a woman”, and
for “husband” in both places it occurs, substitute “male spouse”.
2Social Security Pensions Act 1975I1 E+W
Section 59 of the Social Security Pensions Act 1975 (increase of official pensions) is amended as follows.
In subsection (5ZB)—
in paragraph (a) for “widow’s pension” substitute “pension payable to a woman in respect of the services of her deceased male spouse”, and
in paragraph (b)—
for a “widower’s” substitute “any other surviving spouse’s”, and
“for wife’s” substitute “spouse’s”.
In subsection (5ZC)—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
in paragraph (b), before “surviving civil partner’s” insert “pension due to a surviving spouse who was married to someone of the same sex and a”.
In subsection (7)f1, omit the definition of “widower’s pension”.
3Pensions Increase (Review) Orders 1979 to 1990I1 E+W
In article 2 (interpretation) of each of—
the Pensions Increase (Review) Order 1979,
the Pensions Increase (Review) Order 1980,
the Pensions Increase (Review) Order 1981,
the Pensions Increase (Review) Order 1982,
the Pensions Increase (Review) Order 1983,
the Pensions Increase (Review) Order 1984,
the Pensions Increase (Review) Order 1985,
the Pensions Increase (Review) Order 1986,
the Pensions Increase (Review) Order 1987,
the Pensions Increase (Review) Order 1988,
the Pensions Increase (Review) Order 1989, and
the Pensions Increase (Review) Order 1990,
in the definition of “widow’s pension”, for “in respect” to the end substitute “to a woman in respect of the services of her deceased male spouse.”.
4Social Security Contributions and Benefits Act 1992I1 E+W
Schedule 5 to the Social Security Contributions and Benefits Act 1992 (pension increase or lump sum where entitlement to retirement pension is deferred) is amended as follows.
In paragraph 5(2)—
in paragraph (a), for “widow” substitute “woman whose deceased spouse was a man”,
in paragraph (b), for “widower” substitute “man whose deceased spouse was a woman”, and
for paragraph (c) substitute—
“(c)where W is—
(i)a woman whose deceased spouse was a woman,
(ii)a man whose deceased spouse was a man, or
(iii)a surviving civil partner,
an amount equal to the sum of the amounts set out in paragraph 6A(2) below.”.
In paragraph 5A(1), for “widow” substitute “woman whose deceased spouse was a man”.
In paragraph 6(1), for “widower” substitute “man whose deceased spouse was a woman”.
In paragraph 6Af1—
for sub-paragraph (1) substitute—
“(1)This paragraph applies where W (referred to in paragraph 5 above) is—
(a)a woman whose deceased spouse was a woman,
(b)a man whose deceased spouse was a man, or
(c)a surviving civil partner.”, and
in sub-paragraph (2)(c), before “civil partner” insert “spouse or”.
5Occupational Pension Schemes (Contracting-out) Regulations 1996I1 E+W
The Occupational Pension Schemes (Contracting-out) Regulations 1996 are amended as follows.
In regulation 55(1) (scheme rules about guaranteed minimum pensions)—
in sub-paragraph (b), for the words from “widow” to “appointed day” substitute “widow of the earner under the scheme in respect of the earner’s service before the principal appointed day, in a case where the earner is a man,”, and
in sub-paragraph (c), for the words from “widower” to “appointed day” substitute “widower or surviving civil partner of the earner under the scheme in respect of the earner’s service before the principal appointed day, or to any widow of the earner under the scheme in respect of that service in a case where the earner is a woman,”.
In regulation 69B(3) (conversion of guaranteed minimum pensions into other benefits: survivors’ benefits)—
in sub-paragraph (c), for “widows” substitute “widows whose spouse was a man”, and
in sub-paragraph (d), for “widowers” substitute “widowers, widows whose spouse was a woman”.
6Occupational Pension Schemes (Modification of Schemes) Regulations 2006I1 E+W
The Occupational Pension Schemes (Modification of Schemes) Regulations 2006 are amended as follows.
In regulation 3(i) (non-application of the subsisting rights provisions), for “widow or widower”, in both places it occurs, substitute “woman whose deceased spouse was a man, or a man whose deceased spouse was a woman”.
In regulation 7(1) (modification of schemes: surviving civil partners), for “widow or widower”, in both places it occurs, substitute “woman whose deceased spouse was a man, or a man whose deceased spouse was a woman”.
7Armed Forces Pension Scheme Order 2005I1 E+W
In each of rules E.3(6)(a), E.4(3)(a) and E.5(3)(a) in Part E of Schedule 1 to the Armed Forces Pension Scheme Order 2005f1, before “civil partner” insert “person who was married to someone of the same sex or a”.
8Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010I1 E+W
Part E of Schedule 1 to the Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010 (death benefits) is amended as follows.
In rule E.1 (surviving spouse’s or civil partner’s pensions)—
for paragraph (3)(c) substitute—
“(c)the member was a man and was married to a woman whom he leaves a widow.”, and
for paragraph (5)(c) substitute—
“(c)the member—
(i)was a woman and was married to a man whom she leaves a widower;
(ii)was married to a person of the same sex and leaves that person as a surviving spouse; or
(iii)leaves a surviving civil partner.”.
In rule E.6 (widows’ pensions: service ended before 31st March 1973), for paragraph (1)(d) substitute—
“(d)the member was a man and was married to a woman whom he leaves a widow.”.
9Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010I1 E+W
In Part C of Schedule 2 to the Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010 (benefits payable to surviving adult dependants), in rule C.2 (conditions relating to the deceased), for paragraphs (a) and (b) substitute—
“(a)the deceased person was in service on or after 31st March 1973 and at the time of his death was a man married to a woman;
(b)the deceased person was in service on or after 6th April 1978, married after discharge, and at the time of his death was a man married to a woman;”.
10Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010I1 E+W
In Part D of Schedule 2 to the Naval and Marine Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010 (benefits payable in respect of eligible children), for rule D.1(3) (entitlement to a child’s compensation) substitute—
“(3)This Part will only apply when—
(a)the deceased person was a man who was in service on or after 31st March 1973, and at the time of his death was married to a woman whom he leaves a widow;
(b)the deceased person was a woman who was in service on or after 1st October 1987, and at the time of her death was married to a man whom she leaves a widower;
(c)the deceased person was in service on or after 1st October 1987, and at the time of that person’s death was either married to a person of the same sex or was in a civil partnership with a person whom the deceased person leaves as a surviving spouse or surviving civil partner;
(d)the deceased person was an eligible partner and was in service on or after 5th December 2005.”.
11Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010I1 E+W
Part E of Schedule 1 to the Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010 (death benefits) is amended as follows.
In rule E.1 (surviving spouse’s or civil partner’s pensions)—
for paragraph (3)(c) substitute—
“(c)the member was a man and was married to a woman whom he leaves a widow.”, and
for paragraph (5)(c) substitute—
“(c)the member—
(i)was a woman and was married to a man whom she leaves a widower;
(ii)was married to a person of the same sex and leaves that person as a surviving spouse; or
(iii)leaves a surviving civil partner.”.
In rule E.6 (widows’ pensions: service ended before 31st March 1973), for paragraph (1)(d) substitute—
“(d)the member was a man and was married to a woman whom he leaves a widow.”.
12Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010I1 E+W
In Part C of Schedule 2 to the Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010 (benefits payable to surviving adult dependants), in rule C.2 (conditions relating to the deceased), for paragraphs (a) and (b) substitute—
“(a)the deceased person was in service on or after 31st March 1973 and at the time of his death was a man married to a woman;
(b)the deceased person was in service on or after 6th April 1978, married after discharge, and at the time of his death was a man married to a woman;”.
13Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010I1 E+W
In Part D of Schedule 2 to the Army Pensions (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Warrant 2010 (benefits payable in respect of eligible children), for rule D.1(3) (entitlement to a child’s compensation) substitute—
“(3)This Part will only apply when—
(a)the deceased person was a man who was in service on or after 31st March 1973, and at the time of his death was married to a woman whom he leaves a widow;
(b)the deceased person was a woman who was in service on or after 1st October 1987, and at the time of her death was married to a man whom she leaves a widower;
(c)the deceased person was in service on or after 1st October 1987, and at the time of that person’s death was either married to a person of the same sex or was in a civil partnership with a person whom the deceased person leaves as a surviving spouse or surviving civil partner;
(d)the deceased person was an eligible partner and was in service on or after 5th December 2005.”.
14Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010I1 E+W
Part E of Schedule 1 to the Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010 (death benefits) is amended as follows.
In rule E.1 (surviving spouse’s or civil partner’s pensions)—
for paragraph (3)(c) substitute—
“(c)the member was a man and was married to a woman whom he leaves a widow.”, and
for paragraph (5)(c) substitute—
“(c)the member—
(i)was a woman and was married to a man whom she leaves a widower;
(ii)was married to a person of the same sex and leaves that person as a surviving spouse; or
(iii)leaves a surviving civil partner.”.
In rule E.6 (widows’ pensions: service ended before 31st March 1973), for paragraph (1)(d) substitute—
“(d)the member was a man and was married to a woman whom he leaves a widow.”.
15Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010I1 E+W
In Part C of Schedule 2 to the Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010 (benefits payable to surviving adult dependants), in rule C.2 (conditions relating to the deceased), for paragraphs (a) and (b) substitute—
“(a)the deceased person was in service on or after 31st March 1973 and at the time of his death was a man married to a woman;
(b)the deceased person was in service on or after 6th April 1978, married after discharge, and at the time of his death was a man married to a woman;”.
16Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010I1 E+W
In Part D of Schedule 2 to the Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010 (benefits payable in respect of eligible children), for rule D.1(3) (entitlement to a child’s compensation) substitute—
“(3)This Part will only apply when—
(a)the deceased person was a man who was in service on or after 31st March 1973, and at the time of his death was married to a woman whom he leaves a widow;
(b)the deceased person was a woman who was in service on or after 1st October 1987, and at the time of her death was married to a man whom she leaves a widower;
(c)the deceased person was in service on or after 1st October 1987 and, at the time of that person’s death was either married to a person of the same sex or was in a civil partnership with a person whom the deceased person leaves as a surviving spouse or surviving civil partner;
(d)the deceased person was an eligible partner and was in service on or after 5th December 2005.”.
17Air Force (Armed Forces Pension Scheme 1975 and Attributable Benefits Scheme) Order 2010I1 E+W
Pension schemes referred to in the first column of the table at sub-paragraph (2) are amended in the appropriate place as specified in the second column by the insertion of—
the following provision, with the number 1 substituted by the appropriate number specified in the third column—
“Marriage of a same sex couple
1.(1)In this Scheme—
(a)a reference to civil partnership is to be read as including a reference to marriage of a same sex couple,
(b)a reference to civil partners is to be read as including a reference to a married same sex couple, and
(c)a reference to a person who is in a civil partnership is to be read as including a reference to a person who is married to a person of the same sex.
(2)Where paragraph (1) requires a reference to be read in a particular way, any related reference (such as a reference to a civil partnership that has ended, or a reference to a person whose civil partnership has ended) is to be read accordingly.
(3)For the purposes of paragraphs (1) and (2) it does not matter how a reference is expressed.
(4)Paragraph 1 of Schedule 3 to the Marriage (Same Sex Couples) Act 2013 does not apply to the interpretation of this Scheme.
(5)Section 11(1) and (2) of, and paragraph 3 of Schedule 3 to, that Act have effect subject to paragraphs (1) to (3).”, and
the following provision, with the number 2 substituted by the appropriate number specified in the fourth column—
“Living together as a same sex couple
2.(1)In this Scheme—
(a)a reference to persons who are not in a civil partnership but are living together as civil partners is to be read as including a reference to a same sex couple who are not married but are living together as a married couple, and
(b)a reference to a person who is living with another person as if they were in a civil partnership is to be read as including a reference to a person who is living with another person of the same sex as if they were married.
(2)Where paragraph (1) requires a reference to be read in a particular way, any related reference (such as a reference to persons formerly living together as civil partners) is to be read accordingly.
(3)For the purposes of paragraphs (1) and (2) it does not matter how a reference is expressed.
(4)Paragraph 2 of Schedule 3 to the Marriage (Same Sex Couples) Act 2013 does not apply to the interpretation of this Scheme.
(5)Section 11(1) and (2) of, and paragraph 3 of Schedule 3 to, that Act have effect subject to paragraphs (1) to (3).”.
The table referred to in sub-paragraph (1) is as set out below—
| Pension scheme | Provision after which wording in paragraph 17 is inserted | New numbering for (a) in paragraph 17 | New numbering for (b) in paragraph 17 |
|---|---|---|---|
| The Firefighters’ Pension Schemef1 set out in Schedule 2 to the Firemen’s Pension Scheme Order 1992 as it has effect in England | Schedule 1, Part 2: Expressions related to National Insurance and Social Security Acts | Part 3: Provision relating to same sex couples, rule 1 | Part 3: Provision relating to same sex couples, rule 2 |
| The Firefighters’ Pension (Wales) Scheme set out in Schedule 2 to the Firemen’s Pension Scheme Order 1992 as it has effect in Walesf2 | Schedule 1, Part 2: Expressions related to National Insurance and Social Security Acts | Part 3: Provision relating to same sex couples, rule 1 | Part 3: Provision relating to same sex couples, rule 2 |
| The Local Government Pension Scheme Regulations 1997f3 | Regulation 42A | Regulation 42B | Regulation 42C |
| The New Firefighters’ Pension Scheme (England)f4 | Part 1, rule 3 | Rule 4 | Rule 5 |
| The New Firefighters’ Pension Scheme (Wales)f5 | Part 1, rule 3 | Rule 4 | Rule 5 |
| Teachers’ Pensions Regulations 2010f6 | Regulation 2 | Regulation 2A | Regulation 2B |
| The Royal Mail Statutory Pension Schemef7 | Part 1, rule 2 | Rule 2A | Rule 2B |
Explanatory note
(This note is not part of the Order)
This Order makes amendments to primary legislation as a consequence of the coming into force of the majority of the provisions of the Marriage (Same Sex Couples) Act 2013 (c. 30) (“the Act”). The Order comes into force on 13th March 2014 (except for the provision made by paragraph 31 of Schedule 1 which comes into force on 3rd June 2014). A separate Order (the Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014) making consequential amendments to subordinate legislation is also coming into force on 13th March 2014.
The Order also makes consequential amendments to primary legislation which should have been made as part of the implementation of the Civil Partnership Act 2004 (c. 33) (“the 2004 Act”) and the Human Fertilisation and Embryology Act 2008 (c. 22) (“the 2008 Act”) but which were inadvertently omitted in the orders making consequential amendments to those Acts. The Order corrects these omissions.
The Order also makes provision concerning the effect of the statutory gloss set out in section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act (“the gloss”). Section 11(1) provides that in the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples. Section 11(2) provides that the law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1). Paragraphs 1 to 3 of Schedule 3 provide that, in existing English and Welsh legislation, a reference to a marriage is to be read as including a reference to the marriage of a same sex couple, a reference to a married couple is to be read as including a reference to a married same sex couple, and a reference to a person who is married is to be read as including a reference to a person who is married to a person of the same sex. Paragraph 1(2) of Schedule 3 provides that related references such as a reference to a person whose marriage has ended are to be read in the same way.
In addition, Schedule 3 to the Act provides that references to persons who are not married but living together as if they are married are to be read as including references to a same sex couple who are not married but living together as a married couple; and that a reference to a person who is living with another person as if they were married is to be read as including a reference to a person who is living with another person of the same sex as if they were married.
Paragraph 27 of Schedule 4 to the Act makes provision about when the gloss described above is subject to contrary provision i.e. disapplied or when it is to apply but subject to other provision. The Order makes contrary provision to the gloss in both primary and secondary legislation.
The Order extends only to England and Wales subject to the following exceptions: article 5 also extends to Scotland; the amendment to the 2004 Act made in paragraph 29(1) and (2) of Schedule 1 also extends to Scotland and Northern Ireland; finally, the amendment to the Family Law (Scotland) Act (2006 asp. 2) made by paragraph 31 of Schedule 1 extends only to Scotland.
As set out above, article 2 of, and Schedule 1 to, the Order make consequential amendments to primary legislation as a result of the extension of marriage to same sex couples, as well as consequential amendments as a result of the 2004 Act and the 2008 Act.
Paragraph 1 of Schedule 1 amends section 6(9)(a) of the Metropolitan Public Carriage Act 1869 (c. 115) to substitute a reference to “widows” with “surviving spouse” and “surviving civil partner” so that all spouses and civil partners are caught by the section. It also repeals section 6(9)(b). This provided that a London cab order may make provision about the transfer by a married woman of her licence to her husband when she was granted the licence and then marries during its continuation.
Paragraph 2 amends the Pension Commutation Act 1871 (c. 36) to substitute a reference to “widows” with “surviving spouse”. Similar amendments are made by paragraphs 3, 6, 9, 17 and 24. In certain cases amendments also rectify the omission of references to civil partners. References to civil partners are inserted into existing provisions by paragraphs 1, 3, 6, 9, 10, 17 and 24.
Paragraphs 14 and 15 also make provision concerning the legitimacy of children born to same sex couples and make amendments to the Fatal Accidents Act 1976 (c. 30) and the Legitimacy Act 1976 (c. 31). The amendments to the Fatal Accidents Act 1976 and section 1 of the Legitimacy Act 1976 are made under the enabling powers in section 64 of the 2008 Act.
Paragraph 29 of Schedule 1 amends the 2004 Act. The amendment made by paragraph 29(2) concerns recognition of overseas marriages between two people of the same sex. Until the coming into force of the provisions of the Act regarding recognition of overseas marriages of same sex couples, a legal relationship between two persons of the same sex was treated as a civil partnership under the law of England and Wales, Scotland and Northern Ireland. Following the extension of marriage to same sex couples under the law of England and Wales, overseas marriages of same sex couples are no longer treated as civil partnerships in England and Wales but are instead recognised as marriages, in the same way as marriages of opposite sex couples. Paragraph 29(2) makes the consequential amendment (in place of paragraph 5 of Schedule 2 to the Act, which will not be commenced).
Paragraph 31 of Schedule 1 makes an amendment to section 38 of the Family Law (Scotland) Act 2006 in consequence of the repeal of the Foreign Marriage Act 1892 (c. 23) made by section 13(2) of the Act. The amendment substitutes a reference to the Foreign Marriage Act 1892 with appropriate references to the Act.
Paragraph 33 amends section 42 of the Statistics and Registration Service Act 2007 (c. 18) to ensure that the Registrar General can pass on all relevant information about marriages and civil partnerships to the Office for National Statistics.
Paragraph 35 amends section 67 of the Equality Act 2010 (c. 15) which makes provision about sex equality with reference to occupational pension schemes. Subsection (7) makes provision about the identity of a comparator of the opposite sex to a complainant to enable a decision to be made as to whether there has been sex discrimination in the context of an equal pay claim. Paragraph 35 substitutes this subsection for new provision which takes account of the fact that same sex couples can now marry. A person in a relationship with a person of the opposite sex will be compared to a person of the opposite sex to them who is also in a relationship with someone of the opposite sex; and a person in a relationship with a person of the same sex will be compared to a person of the opposite sex to them who is also in a relationship with someone of the same sex. This means that a woman married to a woman would need to compare herself to a man married to a man, rather than a man married to a woman; or she could compare herself to a man in a civil partnership.
The remaining amendments in Schedule 1 make provision amending definitions of “couple” or making other consequential provision which reflects the fact that same sex couples can now marry. In particular, paragraph 5 amends the Marriage Act 1949 (c. 76) to make provision about registered buildings. Paragraph 5(4) amends the definition of “required consents” in section 49A of the Marriage Act 1949 to include the consents required under the Marriage of Same Sex Couples (Registration of Shared Buildings) Regulations 2014 (which come into force on 13th March 2014). If a same sex couple knowingly and wilfully marries in the absence of the required consents, the marriage will be void.
Schedule 2 contains provision to which the gloss is subject and specifies cases in which the gloss is disapplied (contrary provision).
Part 1 of Schedule 2 concerns disapplication of the gloss from certain provisions of English and Welsh common law. The gloss is disapplied from the common law concerning the conferral of the titles of Queen or Princess of Wales on a person who marries or who is married to the King Regnant or the Prince of Wales. The gloss is also disapplied as regards the conferral of a title on the spouse of a peer. This aligns the treatment of married couples of the same sex with that of civil partners.
Part 2 of Schedule 2 makes it clear that section 11(1) and (2) of the Act do not apply to any EU instruments. Paragraph 3 of Schedule 2 disapplies the effect of section 11(1) and (2).
Part 3 of Schedule 2 makes provision to which section 11(1) and (2) and Schedule 3 are subject in respect of the Armed Forces Pension Scheme Order 2005 (S.I. 2005/438), but also disapplies the gloss from various enactments. The gloss is disapplied in its entirety from the list of enactments at paragraph 5 of Schedule 2.
Schedule 3 makes consequential amendments to particular primary and secondary legislation from which Schedule 2 has disapplied the gloss and also as a result of the provision made by paragraph 4 of Schedule 2.
Paragraphs 1 and 3 amend the Pensions (Increase) Act 1971 (c. 56) and article 2 of various Pension Increase (Review) Orders to ensure that these apply appropriately in certain cases to women formerly married to men only.
Paragraph 2 similarly confines certain provisions of section 59 of the Social Security Pensions Act 1975 (c. 60) to women formerly married to men and men formerly married to women and makes consequential amendments to that section.
Paragraph 4 confines certain provisions of Schedule 5 to the Social Security Contributions and Benefits Act 1992 (c. 4) to women formerly married to men and men formerly married to women but also makes specific provision about same sex married couples, treating them on a par with civil partners.
Paragraphs 5 and 6 make similar amendments to the Occupational Pension Schemes (Contracting-out) Regulations 1996 (S.I. 1996/1172) and the Occupational Pension Schemes (Modification of Schemes) Regulations 2006 (S.I. 2006/759) to confine references to married persons as appropriate to opposite sex couples. The former also makes specific provision for same sex married couples.
Part 2 of Schedule 3 is concerned with public service pension schemes. These are occupational pension schemes established to provide pensions for particular public sector workers. Schedule 3 makes amendments in respect of various public service pension schemes which follow the approach taken in the Act.
A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen over and above that identified in the Impact Assessment published when the Act received Royal Assent.