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ECHR: not discriminatory to deny same-sex partner a survivor's pension

Refusing to retrospectively re-write national laws to reflect the "evolving" legal recognition of same-sex couples is not discriminatory, the European Court of Human Rights (ECHR) has confirmed.20 Jun 2016

The ECHR backed the Spanish government in a challenge brought by a man who had been denied a survivor's pension following the death of his partner in 2002, three years before same-sex marriage was introduced in Spain. Antonio Aldeguer Tomás had argued that his circumstances were "relevantly similar or analogous" to the surviving partner of a heterosexual cohabiting couple who had been prevented from marrying before Spain changed the law to permit divorce in 1981.

In its judgment, the court acknowledged that there were "certain similarities" between Tomás' situation and that of the heterosexual cohabiting partner of someone who had died before the law changed in 1981. Those individuals are entitled to claim a survivor's pension in Spain by virtue of specific provisions within that piece of legislation. However, that alone was not enough to make Tomás' circumstances "relevantly similar", the court said.

"As noted by [the Spanish government], [the 1981 provision] had the very specific purpose of providing a provisional and extraordinary solution to those couples, giving the surviving partner access to a survivor's pension under certain conditions," the court said in its judgment. "This, as may be assumed, against the background of a situation where the participation in building up pension rights by paid work had not been equally distributed among the sexes, since women were underrepresented in the work force."

"In the court's view, the difference in context and the difference in nature of the legal impediment to marriage make the situation of [Tomás] in 2005 fundamentally different from that of different-sex couples covered by [the 1981 law]. This view is unaffected by the fact that the Spanish legislature recognised the right to a survivor's pension to same-sex couples after the death of the applicant's partner, by introducing in 2005 same-sex marriage," it said.

Pensions law expert Alastair Meeks of Pinsent Masons, the law firm behind Out-Law.com, said that the ECHR had drawn similar conclusions as the Court of Appeal in a recent decision in the UK, albeit from "a very different perspective".

"Both courts came to the conclusion that the change in the consensus about sexual orientation did not require the retrospective rewriting of rules to put right past unequal treatment," he said.

In October 2015, the Court of Appeal dismissed a case appealing an Employment Appeal Tribunal (EAT) ruling on a surviving civil partner's entitlement to claim death benefits from a deceased partner's defined benefit (DB) pension scheme, saying that EU legislation does not have "retroactive effect". The EAT ruled that a surviving civil partner's entitlement to benefits from the Innospec pension scheme could be restricted to rights the scheme member built up from 5 December 2005, the date that civil partnerships were introduced in the UK.

Similarly, the ECHR said that states had to be given a "margin of appreciation in the timing of the introduction of legislative changes" in relation to areas of "evolving rights where there is no established consensus". This should be the case unless that state's choice was "manifestly without reasonable foundation", it said.

In addition, the fact that the Spanish legislature later went on to recognise the right of same sex partners to a survivor's pension following the introduction of same sex marriage "cannot be taken as an admission by the domestic authorities that the non-recognition of same-sex marriage, or the exclusion of same-sex couples from some of the rights and benefits available to married couples, was at the relevant time incompatible with the [European Convention on Human Rights]", it said.

"Though the ECHR found against [Tomás], it reaffirmed that it would now give little leeway where it saw discrimination on the ground of sexual orientation - particularly convincing and weighty reasons would be required by way of justification," said pensions law expert Alastair Meeks.

"The case shows how the ECHR will give states flexibility in the way in which they manage their transition to equality of sexual orientation. It will not, however, be doing to the same for states that refuse to move with the times," he said.