BAG overturns customary “late-marriage clause”

BAG, judgment dated 4.8.2015 – 3 AZR 137/13
Press Release No. 40/15

A ruling under which a surviving dependents’ pension can only be claimed if the deceased employee married before reaching the age of sixty is ineffective on the grounds of age discrimination.

Many pension regulations for company old-age pension schemes include so-called “late-marriage clauses”. These are intended to exclude a surviving dependents’ pension if the marriage or registered civil partnership is entered into at an advanced age – e. g. after the sixtieth birthday of the employee entitled to a pension. The significance of such a ruling is obvious: the risk of death increases with age. If employees marry a – frequently considerably younger – woman at an advanced age, this can result in significant payment obligations for the employer for a surviving dependents’ pension in the event of death. Keeping the costs of the surviving dependents’ pension within limits is a legitimate aim of the employer. To date, the Federal Labor Court (BAG) has recognized “late-marriage clauses”. In a  decision thus far published only as a press release, the responsible 3rd Senate has overturned this case law.

The facts of the matter

The plaintiff was the widow of a man who died in 2010. His former employer had refused to pay the woman a surviving dependents’ pension. It invoked the “late-marriage clause” in the pension regulations. Under this ruling, an additional precondition for payment of the widow’s pension is that the employee entitled to a pension has married before reaching the age of 60. The plaintiff’s deceased husband did not satisfy this precondition. The defendant employer was of the opinion that the husband had not married until the age of 61 and thus too late, an opinion also shared by the previous instances. It was only following an appeal by the widow on a point of law that the Federal judges decided in her favor, and awarded the widow the surviving dependents’ pension.

As the 3rd Senate has now decided, the “late-marriage clause” is ineffective under Section 7 Subsection 2 of the General Equality of Treatment Act (AGG), because it directly disadvantages the deceased husband on the basis of age. This discrimination is likewise not justified under other regulations of the AGG. Section 10 Sentence 3 No. 4 AGG does permit differentiation by age under facilitated preconditions for company social security systems. However, based on its wording, this regulation covers only old- age and invalidity pensions and not surviving dependents’ pensions – and thus likewise not widow’s/widower’s pensions – in terms of age limits as a precondition for the receipt of benefits under the company old-age pension scheme. Consequently, justification under this regulation is not possible, either directly or analogously. According to the judgment, the “late-marriage clause” results in an excessive impairment of the legitimate interests of the employees entitled to receive a pension. The BAG therefore ordered the employer to pay the widow a surviving dependent’s pension.

Summary

“Late-marriage clauses” are widespread in practice. To avoid unexpected payment obligations, employers are advised to check their own pension regulations and to adapt them if necessary. The legitimate aim of the employer in keeping the costs of surviving dependents’ pensions within limits and excluding “pension marriages” can be achieved through age-difference clauses and rulings on the minimum duration of the marriage.