In an unanimous Judgement, the Court of Appeal have decided that a scheme rule which provides death benefits to an 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 on that case, cannot be justified or proportionate.

 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 had to be met.  This included requirements that at the time of a members or former members death

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

 b) The point being, a relationship cannot be   “substantial and exclusive” if either or both of the parties is still married to or a civil partner of someone other than the other party to the current relationship.

Mrs L had applied for benefits following the death of her partner Mr G.  When Mr. G died, the couple had been living together for a number of years.  They had also declared publicly their intention to marry and started to instigate  a divorce for Mrs. L who was still married but had been estranged from her Husband for 17 years.  Because Mrs. L was still married, she did not meet the 2 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 L complained that these conditions discriminated against her.

What did the Court of Appeal decide and why?

The Court of Appeal upheld Mrs. L’s appeal.  It ruled that providing benefits for unmarried partners but excluding unmarried partners who were still legally married to someone else was unlawful which cannot be justified or proportionate.

There might be room for other schemes which have similar rules to have a different outcome and the Court of Appeal stopped short of saying that not providing death benefits to the unmarried partners of scheme members of cases where the surviving partner is still legally married to another person would always be unlawful.

The decision in this case is relevant to any Pension Scheme which provides death benefits to the unmarried partner of a scheme member but not if the unmarried partner is still married to another person. Scheme members  which have this kind of rule may wish to take advice.


If this affects you please feel free to contact any of our family specialists for guidance across offices located at Boston, Lincoln, Sleaford, Spalding, Grantham and Newark.

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