Marriage (Same Sex Couples) Bill (HL Bill 39)

(4) Subsection (6): after “Wales” insert “(whether the proceedings are in respect
of the marriage of a man and a woman or the marriage of a same sex
couple)”.

7 Section 6 (miscellaneous amendments, transitional provision and savings),
5subsection (3): after “Act” (in the first place) insert “, or by virtue of Schedule
A1 to this Act,”.

8 Before Schedule 1 insert—

“SCHEDULE A1

Jurisdiction in relation to marriage of same sex couples

1 Introduction

This Schedule shall have effect, subject to section 6(3) and (4), with
10respect to the jurisdiction of the court to entertain any of the
following proceedings in relation to a marriage of a same sex
couple—

(a) proceedings for divorce, judicial separation or nullity of
marriage;

(b) 15proceedings for an order which ends a marriage on the
ground that one of the couple is dead; and

(c) proceedings for a declaration of validity.

2 Divorce, judicial separation or annulment

(1) The court has jurisdiction to entertain proceedings for divorce or
20judicial separation if (and only if)—

(a) the court has jurisdiction under regulations under
paragraph 5,

(b) no court has, or is recognised as having, jurisdiction under
regulations under paragraph 5 and either of the married
25same sex couple is domiciled in England and Wales on the
date when the proceedings are begun, or

(c) the following conditions are met—

(i) the two people concerned married each other
under the law of England and Wales,

(ii) 30no court has, or is recognised as having,
jurisdiction under regulations under paragraph 5,
and

(iii) it appears to the court to be in the interests of justice
to assume jurisdiction in the case.

(2) 35The court has jurisdiction to entertain proceedings for nullity of
marriage if (and only if)—

(a) the court has jurisdiction under regulations under
paragraph 5,

(b) no court has, or is recognised as having, jurisdiction under
40regulations under paragraph 5 and either of the married
same sex couple—

(i) is domiciled in England and Wales on the date
when the proceedings are begun, or

(ii) died before that date and either was at death
domiciled in England and Wales or had been
habitually resident in England and Wales
throughout the period of 1 year ending with the
5date of death, or

(c) the following conditions are met—

(i) the two people concerned married each other
under the law of England and Wales,

(ii) no court has, or is recognised as having,
10jurisdiction under regulations under paragraph 5,
and

(iii) it appears to the court to be in the interests of justice
to assume jurisdiction in the case.

(3) At any time when proceedings are pending in respect of which the
15court has jurisdiction by virtue of sub-paragraph (1) or (2) (or this
sub-paragraph), the court also has jurisdiction to entertain other
proceedings, in respect of the same marriage, for divorce, judicial
separation or nullity of marriage, even though that jurisdiction
would not be exercisable under subsection (1) or (2).

3 20Presumption of death order

The court has jurisdiction to entertain proceedings for an order
which ends a marriage on the ground that one of the couple is
dead on an application made by the other of the couple (“the
applicant”) if (and only if)—

(a) 25at the time the application is made, the High Court does
not have jurisdiction to entertain an application by the
applicant under section 1 of the Presumption of Death Act
2013 for a declaration that the applicant’s spouse is
presumed to be dead, and

(b) 30the two people concerned married each other under the
law of England and Wales and it appears to the court to be
in the interests of justice to assume jurisdiction in the case.

4 Declaration of validity

The court has jurisdiction to entertain an application for a
35declaration of validity if (and only if)—

(a) either of the parties to the marriage to which the
application relates—

(i) is domiciled in England and Wales on the date of
the application,

(ii) 40has been habitually resident in England and Wales
throughout the period of 1 year ending with that
date, or

(iii) died before that date and either was at death
domiciled in England and Wales or had been
45habitually resident in England and Wales
throughout the period of 1 year ending with the
date of death, or

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

5 Power to make provision corresponding to EC Regulation 2201/2003

(1) 5The Lord Chancellor may by regulations make provision—

(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) 10is 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) 15as 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) 20The 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
25regulations “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)
30which 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) 35A 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.

6 Interpretation

40In this Schedule “declaration of validity” means—

(a) a declaration as to the validity of a marriage,

(b) a declaration as to the subsistence of a marriage, or

(c) a declaration as to the validity of a divorce, annulment or
judicial separation obtained outside England and Wales in
45respect of a marriage.”.

9 Schedule 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) 5This paragraph applies if section 1 of the Presumption of Death Act 2013 has
not 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
10effect with the following modifications until section 1 of the Presumption of
Death 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
15dissolved in pursuance of section 19 of the Matrimonial
Causes Act 1973; and”.

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

“3 The court has jurisdiction to entertain proceedings for death to be
20presumed and a marriage to be dissolved if (and only if)—

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

(b) the applicant was habitually resident in England and
Wales throughout the period of 1 year ending with that
25date, or

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

30Part 5 State pensions

Category 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
35person 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
spouse”) if—

(a) 40the 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
issued.

(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) 5after 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) 10in 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) 15after 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) 20the 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) 25In 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
widowers) does not confer a right to a Category B retirement pension on a
30woman 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
spouse”) if—

(a) 35the 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
issued.

(3) 40In 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) in subsection (1ZA), after paragraph (b) insert—

“(c) 45in 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) the spouse was, at the time of her death, a
woman and the pensioner in question is a
5woman, and

(iv) subsection (1ZB) applies,

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

(c) after subsection (1ZA) insert—

“(1ZB) 10This subsection applies where—

(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) 15the 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
section”.

(5) 20In 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
amended in accordance with sub-paragraphs (2) to (4).

(2) 25After 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
at the time of that death,

(b) 30they 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
in Schedule 3, Part 1, paragraph 5.”.

(3) 35Subsection (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
after 6th April 2010.

(6) 40Section 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
gender recognition certificate having been issued under the Gender
45Recognition 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
and Benefits Act 1992.

5Graduated 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) for extending section 37 of that Act (increase of woman’s
10retirement 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
15applies 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) men and their late husbands, and

(ii) 20women 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) After subsection (2) insert—

“(3) 25In 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.

(4) For that purpose “relevant gender change case”, in relation to a
30woman (“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
under the Gender Recognition Act 2004, and

(b) the marriage of the pensioner and her late wife subsisted
35before the time when the certificate was issued.”

Adult dependency increases

15 (1) In 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
40apply 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
construed accordingly.

(2) In a case where a full gender recognition certificate is issued to a person
45under 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) 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
5be construed accordingly.

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

Converted civil partnerships

16 (1) This paragraph applies where a civil partnership is converted into a
10marriage 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) 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
15the day before the conversion day, and

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

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

20Part 6 Occupational pensions and survivor benefits

Benefits 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) 25Sub-paragraph (1): for “married” substitute “within sub-paragraph (1A)”.

(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, or

(c) 30married to a person of the same sex in a relevant gender
change case.

(1B) The 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
35their marriage, and

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

Pension Schemes Act 1993

18 The Pension Schemes Act 1993 is amended in accordance with paragraphs
4019 to 26.

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

20 (1) Section 17 (minimum pensions for widows and widowers) is amended as
5follows.

(2) Subsection (2)—

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

(b) after paragraph (c) insert—

“(d) 10if the earner is a man who has a guaranteed minimum under
that 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 (other than in a relevant gender
15change 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
minimum.”.

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

(4) 20Subsection (5): at the beginning insert “In the case of a woman who is the
widow of a man,”.

(5) Subsection (6)—

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

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

(6) 25After 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) the earner is a woman by virtue of a full gender recognition
certificate having been issued under the Gender Recognition
30Act 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.

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

21 (1) 35Section 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
earner”.

(3) Subsection (3)—

(a) 40after “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) after “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
5certificate 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) 10This 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
15under a scheme includes a person who is so entitled by virtue of a
qualifying relationship only in such cases as may be prescribed.

(5) For 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) 20the widower of a female earner;

(b) the widower of a male earner;

(c) the 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) 25In 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
where—

(a) the earner is a woman by virtue of a full gender recognition
certificate having been issued under the Gender Recognition
30Act 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.

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

23 35Before section 39 insert—

“38A Regulations about relevant gender change cases

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

(a) section 17,

(b) section 24D, or

(c) 40section 37,

to have its special effect in relevant gender change cases only if
conditions 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) 45one or both of the members of married same sex couples, or