Court grants woman access to late partner's military pension

Although the pension scheme provides survivor's benefits to bereaved unmarried partners, the scheme denied benefits to Jane Langford on the grounds that she was still legally married to her ex-husband. Ms Langford had been estranged from her ex-husband, from whom she received no financial support, for 17 years, and had lived with the deceased, Air Commodore Christopher Green, in "a relationship akin to marriage" for 15 years.

The Court of Appeal found that the scheme rule denying benefits to surviving partners who remained married to a third party was discriminatory and could not be justified on the facts of Ms Langford's case.

Pensions expert Simon Tyler of Pinsent Masons, the law firm behind Out-Law, said that the case was a "significant" one, albeit one which was "limited in impact".

"The decision is part of a general movement to ensure pension schemes operate more fairly - a development that has seen the inclusion of same-sex civil partners and will extend by the end of this year to opposite-sex civil partners under government plans announced this month," he said.

"However, the decision affects only those schemes that require individuals to be divorced from a previous partner before they can benefit on the death of their new partner. That requirement, although prevalent in public sector schemes, is uncommon in private sector schemes. Unmarried couples should bear in mind that they may well not receive the same benefits as married couples from a pension scheme. They should check with their pension schemes to ensure they properly understand what benefits are payable," he said.

The UK government is currently consulting on allowing opposite-sex couples in England and Wales to enter into civil partnerships, as opposed to marriage, following last year's Supreme Court decision that it was discriminatory to make them available to single-sex couples only. It is also seeking views on allowing a short 'conversion period', during which married opposite-sex couples would be able to convert their marriage into a civil partnership if they chose to do so.

In 2017, the UK Supreme Court ruled that a requirement that a cohabiting partner 'opt in' to be entitled to a survivor's pension from Northern Ireland's local government pension scheme while granting the same benefits to a surviving spouse automatically was discriminatory. The Court of Appeal referred to this decision at length in its judgment in the Langford case,

Langford and Green lived together between 2 November 2006 and 17 May 2011 when Green, a serving officer in the RAF, died suddenly and unexpectedly. The Court of Appeal was told that the couple had "declared publicly their intention to marry" and that Langford had made some "early investigations" into divorcing her former husband, from whom she received no financial support "and had no expectation of any".

Giving the unanimous judgment of the Court of Appeal, Lord Justice McCombe said that the requirement that Langford obtain a divorce from her ex-husband when she was "in a substantial and exclusive relationship with a scheme member and either financially dependent on, or interdependent with" a pension scheme member was disproportionate and could not be justified.

"To my mind, the aim of this scheme is to put those in stable and exclusive relationships with scheme members, whether married to scheme members or not, into the same position for benefit purposes," the judge said. "The exclusion of partners of deceased scheme members, who are still married to third parties, is one method or means of identifying the target group of dependent beneficiaries: it is not an aim of the scheme itself."

"The discrimination is, in my judgment, unlawful and cannot be justified or proportionate in Mrs Langford's case."

The judge acknowledged that it "might be possible, on material adduced at the proper stage of the proceedings" for a similar rule to be "justified and proportionate" in other cases involving surviving partners still married to third parties. However, the proportionality exercise "was not undertaken properly in this case", he said.