Same sex marriage regulations published

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The Marriage (Same Sex Couples) Act 2013 (Commencement No 2 and Transitional Provision) Order 2014 (the Order) was made on 15 January 2014.

The Order sets out when the majority of the provisions of the Marriage (Same Sex Couples) Act 2013 (the Act) will come into force. The first same-sex marriages can take place in England and Wales on 29 March 2014.

The majority of the provisions of the Act are brought into force on 13 March 2014, the main exclusions being those relating to a spouse changing legal gender and conversion of a Civil Partnership into a marriage.

The Government has indicated that these exclusions are because implementing the relevant parts of the Act will require creation of new procedures, and to date has said it hopes to have arrangements for conversion of Civil Partnerships in place by the end of 2014.

Pension schemes may need to revisit the question of survivor benefits for same sex partners. The intention is that same sex married couples are treated in the same way as civil partners, meaning that the legal obligation is to provide such benefits in respect of service from 5 December 2005 (or 5 April 1988 in relation to contracted-out rights).

In fact many schemes provide full benefits for surviving civil partners. Those that do so will need to consider whether this is to extend to same sex marriage. This would be the logical thing to do and would avoid complications as and when civil partnerships covert to marriage.

The Act contains a provision which states that the new law does not alter the effect of any private legal instrument made before it comes into force. This will include pension scheme trust deeds and should ensure that a same-sex spouse will not automatically be treated as a “spouse” for the purpose of a pension scheme's rules.

As a matter of good practice, it would nevertheless be sensible to ensure that the intended benefits are clearly stated both on the face of scheme documentation and in member literature.