Marriage (Same Sex Couples) Bill (HC Bill 3)

Marriage (Same Sex Couples) BillPage 30

Part 5 State pensions

Category B retirement pension for married person

9 (1) Section 48A of the 1992 Act (Category B retirement pension for married
5person) does not confer a right to a Category B retirement pension on a
person by reason of the person being married to a person of the same sex
who was born before 6th April 1950.

(2) But that does not prevent section 48A from conferring a right to such a
pension on a woman by reason of her marriage to another woman (“the
10spouse”) if—

(a) the spouse is a woman by virtue of a full gender recognition
certificate having been issued under the Gender Recognition Act
2004, and

(b) the marriage subsisted before the time when that certificate was
15issued.

(3) In section 48A of the 1992 Act—

(a) in subsection (2ZA)—

(i) in paragraph (a) for “married man who” substitute “man
married to a woman and the spouse”;

(ii) 20after paragraph (b) insert—

(c) in a case where the spouse is a woman born before 6th
April 1945 who is married to a woman and subsection
(2ZB) applies, the conditions specified in Schedule 3,
Part 1, paragraph 5;

(d) 25in a case where the spouse is a woman born on or after
6th April 1945 but before 6th April 1950 who is
married to a woman and subsection (2ZB) applies, the
condition specified in Schedule 3, Part 1, paragraph
5A.;

(b) 30after subsection (2ZA) insert—

(2ZB) This subsection applies where—

(a) the spouse is a woman by virtue of a full gender
recognition certificate having been issued under the
Gender Recognition Act 2004, and

(b) 35the marriage subsisted before the time when that
certificate was issued.

(4) In paragraph 5A of Schedule 3 to the 1992 Act, at the end of sub-paragraph
(1)(b) insert “or in a case of the kind mentioned in subsection (2ZA)(d) of that
section”.

(5) 40In this paragraph “the 1992 Act” means the Social Security Contributions
and Benefits Act 1992.

Category B retirement pension for widows and widowers

10 (1) Section 48B of the 1992 Act (Category B retirement pension for widows and
widowers) does not confer a right to a Category B retirement pension on a

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woman who attains pensionable age before 6th April 2010 by reason of her
marriage to another woman.

(2) But that does not prevent section 48B from conferring a right to such a
pension on a woman by reason of her marriage to another woman (“the
5spouse”) if—

(a) the spouse was, at the time of her death, a woman by virtue of a full
gender recognition certificate having been issued under the Gender
Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was
10issued.

(3) In section 48B of the 1992 Act—

(a) in subsection (1ZA), in paragraph (a)(ii) after “date” (in the second
place where it appears) insert “and the case does not fall within
paragraph (c)”;

(b) 15in subsection (1ZA), after paragraph (b) insert—

(c) in a case where—

(i) the spouse died on or after 6th April 2010,

(ii) the spouse was born on or after 6th April 1945
but before 6th April 1950,

(iii) 20the spouse was, at the time of her death, a
woman and the pensioner in question is a
woman, and

(iv) subsection (1ZB) applies,

the condition specified in Schedule 3, Part 1,
25paragraph 5A.;

(c) after subsection (1ZA) insert—

(1ZB) This subsection applies where—

(a) the spouse was, at the time of her death, a woman by
virtue of a full gender recognition certificate having
30been issued under the Gender Recognition Act 2004,
and

(b) the marriage subsisted before the time when that
certificate was issued.

(4) In paragraph 5A of Schedule 3 to the 1992 Act, at the end of sub-paragraph
35(1)(c) insert “or in a case of the kind mentioned in subsection (1ZA)(c) of that
section”.

(5) In this paragraph “the 1992 Act” means the Social Security Contributions
and Benefits Act 1992.

Category B retirement pension for widowers

11 (1) 40Section 51 of the 1992 Act (Category B retirement pension for widowers) is
amended in accordance with sub-paragraphs (2) to (4).

(2) After subsection (1) insert—

(1ZA) A party to a marriage of a same sex couple shall be entitled to a
Category B retirement pension if—

(a) 45the other party has died and they were married to each other
at the time of that death,

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(b) they were both over pensionable age at the time of that death,
and

(c) before that death the deceased party satisfied the
contribution conditions for a Category A retirement pension
5in Schedule 3, Part 1, paragraph 5..

(3) Subsection (2): after “wife” insert “, husband”.

(4) Subsection (3): after “2002” insert “, surviving party to a same sex marriage”.

(5) Section 51(1ZA) of the 1992 Act does not confer a right to a Category B
retirement pension on a person if the person attains pensionable age on or
10after 6th April 2010.

(6) Section 51(1ZA) of the 1992 Act does not confer a right to a Category B
retirement pension on a woman by reason of her marriage to another
woman (“the spouse”) if—

(a) the spouse was, at the time of her death, a woman by virtue of a full
15gender recognition certificate having been issued under the Gender
Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was
issued.

(7) In this paragraph “the 1992 Act” means the Social Security Contributions
20and Benefits Act 1992.

Graduated retirement benefit

12 (1) Section 62 of the Social Security Contributions and Benefits Act 1992
(graduated retirement benefit) is amended as follows.

(2) Subsection (1): after paragraph (ac) insert—

(ad) 25for extending section 37 of that Act (increase of woman’s
retirement pension by reference to her late husband’s
graduated retirement benefit) to—

(i) men and their late husbands, and

(ii) women and their late wives,

30and for that section (except subsection (5)) so to apply as it
applies to women and their late husbands;

(ae) for extending section 37 of that Act (increase of woman’s
retirement pension by reference to her late husband’s
graduated retirement benefit) to—

(i) 35men and their late husbands, and

(ii) women and their late wives,

who attain pensionable age before 6th April 2010 and for that
section (except subsection (5)) so to apply as it applies to men
and their late wives;.

(3) 40After subsection (2) insert—

(3) In relevant gender change cases, women and their late wives are to
be treated for the purposes of sections 36 and 37 of the National
Insurance Act 1965 in the same way as women and their late
husbands.

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(4) For that purpose “relevant gender change case”, in relation to a
woman (“the pensioner”) and her late wife, means a case where—

(a) the late wife was, at the time of her death, a woman by virtue
of a full gender recognition certificate having been issued
5under the Gender Recognition Act 2004, and

(b) the marriage of the pensioner and her late wife subsisted
before the time when the certificate was issued.

Adult dependency increases

13 (1) In a case where a full gender recognition certificate is issued to a person
10under the Gender Recognition Act 2004—

(a) section 83 of the 1992 Act (pension increase (wife)) does not cease to
apply by virtue of the change of gender; and

(b) in the continued application of section 83 in such a case, references to
a pension payable to a man, or references to his wife, are to be
15construed accordingly.

(2) In a case where a full gender recognition certificate is issued to a person
under the Gender Recognition Act 2004—

(a) section 84 of the 1992 Act (pension increase (husband)) does not
cease to apply by virtue of the change of gender; and

(b) 20in the continued application of section 84 in such a case, references to
a pension payable to a woman, or references to her husband, are to
be construed accordingly.

(3) In this paragraph “the 1992 Act” means the Social Security Contributions
and Benefits Act 1992.

25Converted civil partnerships

14 (1) This paragraph applies where a civil partnership is converted into a
marriage under section 9.

(2) For the purposes of section 48A of, and paragraph 5A(1)(b) of Schedule 3 to,
the Social Security Contributions and Benefits Act 1992—

(a) 30the civil partnership is to be treated as having subsisted during the
period that begins with the day when it was formed and ends with
the day before the conversion day, and

(b) the marriage is to be treated as subsisting only from the conversion
day.

(3) 35In this paragraph “conversion day” means the day when the civil
partnership is converted into a marriage.

Part 6 Occupational pensions and survivor benefits

Benefits dependent on marriage of same sex couples

15 (1) 40Paragraph 18 of Schedule 9 to the Equality Act 2010 (work: exceptions) is
amended as follows.

(2) Sub-paragraph (1): for “married” substitute “within sub-paragraph (1A)”.

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(3) After sub-paragraph (1) insert—

(1A) A person is within this sub-paragraph if the person is—

(a) a man who is married to a woman, or

(b) a woman who is married to a man.

5Pension Schemes Act 1993

16 The Pension Schemes Act 1993 is amended in accordance with paragraphs
17 to 23.

17 In section 8(2) (meaning of certain terms), in the definition of “guaranteed
minimum pension”, after “widower’s” insert “, surviving same sex
10spouse’s”.

18 (1) Section 17 (minimum pensions for widows and widowers) is amended as
follows.

(2) Subsection (2): after paragraph (c) insert—

(d) if the earner is a man who has a guaranteed minimum under
15that section, the weekly rate of the widower’s pension will
not be less than the surviving same sex spouse’s guaranteed
minimum;

(e) if the earner is a woman who has a guaranteed minimum
under that section, the weekly rate of the widow’s pension
20will not be less than the surviving same sex spouse’s
guaranteed minimum..

(3) Subsection (4): after “partner’s” insert “or surviving same sex spouse’s”.

(4) Subsection (5): at the beginning insert “In the case of a woman who is the
widow of a man,”.

(5) 25Subsection (6)—

(a) at the beginning insert “In any other case,”;

(b) after “widower’s” insert “, widow’s”.

19 (1) Section 24D (survivors’ benefits) is amended as follows.

(2) Subsection (2): after “earner” insert “is a man married to a woman, and the
30earner”.

(3) Subsection (3)—

(a) after “earner” insert “is a married woman, a man married to a man,
or a civil partner, and the earner”;

(b) after “widower” insert “, widow”.

20 35In Section 37 (alteration of rules of contracted-out schemes), in subsection
(4), for “widower or surviving civil partner of an earner” substitute
“widower of a female earner, the survivor of a marriage with an earner of the
same sex, or the survivor of a civil partnership with an earner,”.

21 In section 47 (further provisions about effect of entitlement to guaranteed
40minimum pension on payment of social security benefits), in subsection (1)
after “widower” insert “, surviving same sex spouse”.

22 In section 84 (basis of revaluation), in subsection (5), after “widower” insert
“, surviving same sex spouse”.

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23 In Schedule 3 (methods of revaluing accrued pension benefits), in paragraph
1(1E)(b), after “widower” insert “, surviving same sex spouse”.

Part 7 General

5Contrary provision

24 (1) The relevant enactments are subject to—

(a) the preceding provisions of this Schedule, and

(b) any order under sub-paragraph (3).

(2) The relevant enactments are subject to any other contrary provision made
10by—

(a) the other provisions of this Act,

(b) any other subordinate legislation made under this Act, and

(c) any new England and Wales legislation,

including any such contrary provision contained in amendments of existing
15England and Wales legislation.

(3) The Secretary of State may by order—

(a) provide that a relevant enactment has effect subject to provision
made by the order, or

(b) specify cases in which a relevant enactment does not apply.

(4) 20In this paragraph “relevant enactment” means—

(a) section 11(1) and (2) and Schedule 3 (equivalence of all marriages in
law), or

(b) section 9(7)(b) (marriage arising from conversion of civil partnership
treated as having subsisted from formation of civil partnership).

Section 12

25SCHEDULE 5 Change of gender of married persons or civil partners

Introduction

1 The Gender Recognition Act 2004 is amended in accordance with this
Schedule.

30Evidence

2 Section 3 (evidence): after subsection (6) insert—

(6A) If the applicant is married, an application under section 1(1) must
include a statutory declaration as to whether the marriage is a
marriage under the law of England and Wales, of Scotland, of
35Northern Ireland, or of a country or territory outside the United
Kingdom.

(6B) If the applicant is married, and the marriage is a protected marriage,
an application under section 1(1) must also include—

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(a) a statutory declaration of consent by the applicant’s spouse
(if the spouse has made such a declaration), or

(b) a statutory declaration by the applicant that the applicant’s
spouse has not made a statutory declaration of consent (if
5that is the case).

(6C) If an application includes a statutory declaration of consent by the
applicant’s spouse, the Gender Recognition Panel must give the
spouse notice that the application has been made..

Successful applications

3 10Section 4 (successful applications): for subsections (2) and (3) substitute—

(2) The certificate is to be a full gender recognition certificate if—

(a) the applicant is neither a civil partner nor married,

(b) the applicant is a party to a protected marriage and the
applicant’s spouse consents to the marriage continuing after
15the issue of a full gender recognition certificate, or

(c) the applicant is a party to a protected civil partnership and
the Panel has decided to issue a full gender recognition
certificate to the other party to the civil partnership.

(3) The certificate is to be an interim gender recognition certificate if—

(a) 20the applicant is a party to a protected marriage and the
applicant’s spouse does not consent to the marriage
continuing after the issue of a full gender recognition
certificate,

(b) the applicant is a party to a marriage that is not a protected
25marriage,

(c) the applicant is a party to a protected civil partnership and
the other party to the civil partnership has not made an
application under section 1(1),

(d) the applicant is a party to a protected civil partnership and
30the Panel has decided not to issue a full gender recognition
certificate to the other party to the civil partnership, or

(e) the applicant is a party to a civil partnership that is not a
protected civil partnership.

(3A) If a Gender Recognition Panel issues a full gender recognition
35certificate under this section to an applicant who is a party to a
protected marriage, the Panel must give the applicant’s spouse
notice of the issue of the certificate.

(3B) Subsection (2)(c) is subject to section 5B..

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Issue of full certificate after interim certificate: applicant married

4 After section 4 insert—

Issue of full certificate after interim certificate: applicant married

4A Married person with interim certificate: issue of full certificate

(1) 5A Gender Recognition Panel must issue a full gender recognition
certificate to a person in either of the following cases.

(2) Case A is where, on an application by the person, the Panel is
satisfied that—

(a) an interim gender recognition certificate has been issued to
10the person;

(b) the person was a party to a protected marriage at the time
when the interim gender recognition certificate was issued;

(c) the person is a party to a protected marriage; and

(d) the person’s spouse now consents to the marriage continuing
15after the issue of the full gender recognition certificate.

(3) Case B is where, on an application by the person, the Panel is
satisfied that—

(a) an interim gender recognition certificate has been issued to
the person;

(b) 20the person was a party to a civil partnership at the time when
the interim gender recognition certificate was issued;

(c) a conversion application has been made within the period of
six months beginning with the day on which that certificate
was issued;

(d) 25the conversion application has resulted in the civil
partnership being converted into a marriage;

(e) the person is a party to that marriage; and

(f) the person’s spouse consents to the marriage continuing after
the issue of the full gender recognition certificate.

(4) 30If, on an application under subsection (2) or (3), the Panel is not
satisfied as mentioned in that subsection, the Panel must reject the
application.

(5) An application under subsection (2) must be made within the period
of six months beginning with the day on which the interim gender
35recognition certificate is issued.

(6) An application under subsection (3) must be made within the period
of six months beginning with the day on which the civil partnership
is converted into a marriage.

(7) An application under subsection (2) or (3) must include a statutory
40declaration of consent made by the person’s spouse.

(8) An application under subsection (3) must also include—

(a) evidence of the date on which the conversion application was
made, and

(b) evidence of the conversion of the civil partnership into a
45marriage.

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(9) If an application is made under this section, the Gender Recognition
Panel must give the applicant’s spouse—

(a) notice of the application; and

(b) if the Panel grants the application, notice of the issue of the
5full gender recognition certificate.

(10) In this section “conversion application” means an application for the
conversion of a civil partnership into a marriage under regulations
under section 9 of the Marriage (Same Sex Couples) Act 2013.

4B Application under section 4A: death of spouse

(1) 10In a case where an application is made under section 4A(2) or (3) and
the applicant’s spouse dies before the application is determined—

(a) the application is to be treated as an application, made under
section 5(2) in a case where a spouse has died, for a full
gender recognition certificate to be issued; and

(b) 15that application is to be treated as having been made at the
time when the application under section 4A was made.

(2) The Gender Recognition Panel determining the application must
specify the period within which the applicant is to produce the
required evidence in support of the new application.

(3) 20In this section—

  • “new application” means the application under section 5(2)
    which the person is, by virtue of subsection (1), treated as
    having made;

  • “required evidence” means the evidence required by section
    255(4)..

Applications by both civil partners

5 After section 5A insert—

Other provision about applications and certificates

5B Applications by both civil partners

(1) 30This section applies where the Panel decides to issue a full gender
recognition certificate to a party to a protected civil partnership.

(2) The Panel must not issue the full gender recognition certificate to
that person unless the Panel issues a full gender recognition
certificate to the other party to the protected civil partnership.

(3) 35In such a case, the Panel must issue both certificates on the same day.

(4) Those certificates take effect at the beginning of the day on which
they are issued..

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Errors in certificates

6 Section 6 (errors in certificates)—

(a) for the title substitute “Errors”;

(b) for subsection (1) substitute—

(1) 5Where a gender recognition certificate has been issued to a
person, the person or the Secretary of State may make an
application for—

(a) an interim gender recognition certificate, on the
ground that a full gender recognition certificate has
10incorrectly been issued instead of an interim
certificate;

(b) a full gender recognition certificate, on the ground
that an interim gender recognition certificate has
incorrectly been issued instead of a full certificate; or

(c) 15a corrected certificate, on the ground that the
certificate which has been issued contains an error.;

(c) subsection (3): for paragraph (a) substitute—

(a) must grant the application if satisfied that the ground
on which the application is made is correct, and;

(d) 20subsection (4): for “a corrected” substitute “a correct, or a corrected,”.

Applications: supplementary

7 Section 7 (applications: supplementary), subsection (1): after “1(1),” insert
“4A,”.

Appeals etc

8 25Section 8 (appeals etc)—

(a) subsection (1): after “1(1),” insert “4A,”;

(b) subsection (5): after “1(1),” insert “4A,”;

(c) after subsection (5) insert—

(5A) If an application under section 1(1), 4A, 5(2), 5A(2) or 6(1) is
30granted, the applicant’s spouse may apply to the High Court
or Court of Session to quash the decision to grant the
application on the grounds that its grant was secured by
fraud.;

(d) subsection (6): after “subsection (5)” insert “or an application under
35subsection (5A)”.

Change in gender of party to marriage

9 After section 11 insert—

11A Change in gender of party to marriage

(1) This section applies in relation to a protected marriage if (by virtue
40of section 4(2)(b) or 4A) a full gender recognition certificate is issued
to a party to the marriage.

(2) The continuity of the protected marriage is not affected by the
relevant change in gender.