Marriage (Same Sex Couples) Bill (HL Bill 29)

(a) as to the jurisdiction of courts in England and Wales in
proceedings for the divorce of, or annulment of the
marriage of, a same sex couple or for judicial separation of
a married same sex couple where one of the couple—

(i) 5is or has been habitually resident in a member
State,

(ii) is a national of a member State, or

(iii) is domiciled in a part of the United Kingdom or the
Republic of Ireland, and

(b) 10as to the recognition in England and Wales of any
judgment of a court of another member State which orders
the divorce of, or annulment of a marriage of, a same sex
couple or the judicial separation of a married same sex
couple.

(2) 15The regulations may in particular make provision corresponding
to that made by Council Regulation (EC) No 2201/2003 of 27th
November 2003 in relation to jurisdiction and the recognition and
enforcement of judgments in matrimonial matters.

(3) The regulations may provide that for the purposes of the
20regulations “member State” means—

(a) all member States with the exception of such member
States as are specified in the regulations, or

(b) such member States as are specified in the regulations.

(4) The regulations may make provision under sub-paragraph (1)(b)
25which applies even if the date of the divorce, annulment or judicial
separation is earlier than the date on which this paragraph comes
into force.

(5) Regulations under this paragraph are to be made by statutory
instrument.

(6) 30A statutory instrument containing regulations under this
paragraph may not be made unless a draft of the statutory
instrument containing the order or regulations has been laid
before, and approved by resolution of, each House of
Parliament.”.

9 35Schedule 1 (staying of matrimonial proceedings in England and Wales:
interpretation), paragraph 2: after “kinds” insert “(whether relating to a
marriage of a man and a woman or a marriage of a same sex couple)”.

Transitory provision until commencement of Presumption of Death Act 2013

10 (1) This paragraph applies if section 1 of the Presumption of Death Act 2013 has
40not come into force at the time when the amendments of the Domicile and
Matrimonial Proceedings Act 1973 made by the other provisions of this Part
of this Schedule come into force.

(2) Schedule A1 to the Domicile and Matrimonial Proceedings Act 1973 has
effect with the following modifications until section 1 of the Presumption of
45Death Act 2013 comes into force.

(3) Paragraph 1 has effect with the following provision substituted for

paragraph (b)—

“(b) proceedings for death to be presumed and a marriage to be
dissolved in pursuance of section 19 of the Matrimonial
Causes Act 1973; and”.

(4) 5Schedule A1 has effect with the following provision substituted for
paragraph 3—

“3 The court has jurisdiction to entertain proceedings for death to be
presumed and a marriage to be dissolved if (and only if)—

(a) the applicant is domiciled in England and Wales on the
10date when the proceedings are begun,

(b) the applicant was habitually resident in England and
Wales throughout the period of 1 year ending with that
date, or

(c) the two people concerned married each other under the
15law of England and Wales and it appears to the court to be
in the interests of justice to assume jurisdiction in the
case.”.

Part 5 State pensions

20Category B retirement pension for married person

11 (1) Section 48A of the 1992 Act (Category B retirement pension for married
person) 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) 25But 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
spouse”) if—

(a) the spouse is a woman by virtue of a full gender recognition
certificate having been issued under the Gender Recognition Act
302004, and

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

(3) In section 48A of the 1992 Act—

(a) in subsection (2ZA)—

(i) 35in paragraph (a) for “married man who” substitute “man
married to a woman and the spouse”;

(ii) after 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
40(2ZB) applies, the conditions specified in Schedule 3,
Part 1, paragraph 5;

(d) in 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
45condition specified in Schedule 3, Part 1, paragraph
5A.”;

(b) after 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
5Gender 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
(1)(b) insert “or in a case of the kind mentioned in subsection (2ZA)(d) of that
10section”.

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

Category B retirement pension for widows and widowers

12 (1) Section 48B of the 1992 Act (Category B retirement pension for widows and
15widowers) does not confer a right to a Category B retirement pension on a
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
20spouse”) 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
25issued.

(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) 30in 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) 35the 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,
40paragraph 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
45been 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
(1)(c) insert “or in a case of the kind mentioned in subsection (1ZA)(c) of that
5section”.

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

Category B retirement pension for widowers

13 (1) Section 51 of the 1992 Act (Category B retirement pension for widowers) is
10amended 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) the other party has died and they were married to each other
15at the time of that death,

(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
20in 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
25after 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
30gender 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
35and Benefits Act 1992.

Graduated retirement benefit

14 (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) 40for 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,

and 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
5retirement 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,

who attain pensionable age before 6th April 2010 and for that
10section (except subsection (5)) so to apply as it applies to men
and their late wives;”.

(3) After 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
15Insurance Act 1965 in the same way as women and their late
husbands.

(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
20of a full gender recognition certificate having been issued
under 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

15 (1) 25In a case where a full gender recognition certificate is issued to a person
under 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
30a pension payable to a man, or references to his wife, are to be
construed 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
35cease to apply by virtue of the change of gender; and

(b) in 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
40and Benefits Act 1992.

Converted civil partnerships

16 (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,
45the Social Security Contributions and Benefits Act 1992—

(a) the 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
5day.

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

Part 6 Occupational pensions and survivor benefits

10Benefits dependent on marriage of same sex couples

17 (1) Paragraph 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)”.

(3) After sub-paragraph (1) insert—

“(1A) 15A 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, or

(c) married to a person of the same sex in a relevant gender
change case.

(1B) 20The reference in sub-paragraph (1A)(c) to a relevant gender
change case is a reference to a case where—

(a) the married couple were of the opposite sex at the time of
their marriage, and

(b) a full gender recognition certificate has been issued to one
25of the couple under the Gender Recognition Act 2004.”.

Pension Schemes Act 1993

18 The Pension Schemes Act 1993 is amended in accordance with paragraphs
19 to 26.

19 In section 8(2) (meaning of certain terms), in the definition of “guaranteed
30minimum pension”, after “widower’s” insert “, surviving same sex
spouse’s”.

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

(2) Subsection (2)—

(a) 35paragraph (a): after “man” insert “, or a woman in a relevant gender
change case,”;

(b) after paragraph (c) insert—

“(d) if the earner is a man who has a guaranteed minimum under
that section, the weekly rate of the widower’s pension will
40not be less than the surviving same sex spouse’s guaranteed
minimum;

(e) if the earner is a woman (other than in a relevant gender
change case) who has a guaranteed minimum under that
section, the weekly rate of the widow’s pension will not be
less than the surviving same sex spouse’s guaranteed
5minimum.”.

(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) Subsection (6)—

(a) 10at the beginning insert “In any other case,”;

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

(6) After subsection (9) insert—

“(10) In relation to an earner who is a woman, a reference in this section to
a relevant gender change case is a reference to a case where—

(a) 15the earner is a woman by virtue of a full gender recognition
certificate having been issued under the Gender Recognition
Act 2004, and

(b) the marriage of the earner and her widow (that ends with the
earner’s death) subsisted before the time when the certificate
20was issued.

(11) This section is subject to regulations under section 38A.”.

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

(2) Subsection (2): after “earner” insert “is a man married to a woman or a
woman married to a woman in a relevant gender change case, and the
25earner”.

(3) Subsection (3)—

(a) after “earner” insert “is a married woman (other than in a relevant
gender change case), a man married to a man, or a civil partner, and
the earner”;

(b) 30after “widower” insert “, widow”.

(4) After subsection (3) insert—

“(4) In relation to an earner who is a woman, a reference in this section to
a relevant gender change case is a reference to a case where—

(a) the earner is a woman by virtue of a full gender recognition
35certificate having been issued under the Gender Recognition
Act 2004, and

(b) the marriage of the earner and her widow (that ends with the
earner’s death) subsisted before the time when the certificate
was issued.

(5) 40This section is subject to regulations under section 38A.”.

22 (1) Section 37 (alteration of rules of contracted-out schemes) is amended as
follows.

(2) For subsection (4) substitute—

“(4) The reference in subsection (3) to a person entitled to receive benefits
under a scheme includes a person who is so entitled by virtue of a
qualifying relationship only in such cases as may be prescribed.

(5) 5For that purpose a person is entitled to receive benefits by virtue of a
qualifying relationship if the person is so entitled by virtue of
being—

(a) the widower of a female earner;

(b) the widower of a male earner;

(c) 10the widow of a female earner, except where it is a relevant
gender change case; or

(d) the survivor of a civil partnership with an earner.

(6) In relation to a widow of a female earner, the reference in subsection
(5)(c) to a relevant gender change case is a reference to a case
15where—

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

(b) the marriage of the earner and her widow (that ends with the
20earner’s death) subsisted before the time when the certificate
was issued.

(7) This section is subject to regulations under section 38A.”.

23 Before section 39 insert—

“38A Regulations about relevant gender change cases

(1) 25The Secretary of State may, by regulations, make provision for—

(a) section 17,

(b) section 24D, or

(c) section 37,

to have its special effect in relevant gender change cases only if
30conditions prescribed in the regulations are met.

(2) Regulations under subsection (1) may, in particular, prescribe
conditions that relate to the provision of information by—

(a) one or both of the members of married same sex couples, or

(b) the survivors of such couples.

(3) 35The Secretary of State may, by regulations, make further provision
about cases where (because of regulations under subsection (1))—

(a) section 17,

(b) section 24D, or

(c) section 37,

40does not have its special effect in relevant gender change cases.

(4) Regulations under subsection (3) may, in particular, provide for the
section in question to have its ordinary effect in relevant gender
change cases.

(5) Regulations under subsection (1) or (3) may, in particular, modify or
45disapply any enactment that concerns information relating to—

(a) the gender or sex of a person, or

(b) the change of gender or sex of a person,

including any enactment that concerns requests for, or disclosure of,
such information.

(6) 5In this section, in relation to section 17, 24D or 37—

(a) “relevant gender change case” has the same meaning as in
that section;

(b) “special effect” means the effect which the section has (if
regulations under subsection (1) of this section are ignored)
10in relation to relevant gender change cases, insofar as that
effect is different from the section’s ordinary effect;

(c) “ordinary effect” means the effect which the section has in
relation to same sex married couples in cases that are not
relevant gender change cases.”.

24 15In section 47 (further provisions about effect of entitlement to guaranteed
minimum pension on payment of social security benefits), in subsection (1)
after “widower” insert “, surviving same sex spouse”.

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

26 20In Schedule 3 (methods of revaluing accrued pension benefits), in paragraph
1(1E)(b), after “widower” insert “, surviving same sex spouse”.

Part 7 General

Contrary provision

27 (1) 25The 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
by—

(a) 30the 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
England and Wales legislation.

(3) 35The 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) In this paragraph “relevant enactment” means—

(a) 40section 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

SCHEDULE 5 Change of gender of married persons or civil partners

Introduction

1 The Gender Recognition Act 2004 is amended in accordance with this
5Schedule.

Evidence

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
10marriage under the law of England and Wales, of Scotland, of
Northern 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—

(a) 15a 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
that is the case).

(6C) 20If 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 Section 4 (successful applications): for subsections (2) and (3) substitute—

“(2) 25The 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
the issue of a full gender recognition certificate, or

(c) 30the 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) the applicant is a party to a protected marriage and the
35applicant’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
marriage,

(c) 40the 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),