A landmark decision was made this week in the Supreme Court whereby it was held that an unmarried woman was automatically entitled to pension payments from her late cohabiting partner’s local government pension scheme. The requirement that the unmarried couple should have completed a nomination form under the pension scheme before she was entitled to survivor’s allowance was ‘disapplied.’ The decision moves a step closer to bringing cohabiting couple’s legal rights in line with a married couple’s legal rights.

Denise Brewster had lived with her partner Lenny McMullan in Northern Ireland for 10 years when he sadly passed away in December 2009. Tragically, the couple had become engaged two days before his death, and therefore they had not married. Contrary to popular belief, the length of time that an unmarried couple has lived together does not automatically govern what the surviving party is entitled to in terms of capital and equity when the other dies.

Mr McMullan had paid into a pension scheme with Northern Ireland’s Local Government Scheme while working for Translink for 15 years. If Ms Brewster and Mr McMullan had been married, she would have automatically been entitled to payments from this pension scheme following his death. However, due to the fact that the couple were cohabitees only, Ms Brewster was initially denied any pension payments following his death.

Under the Local Government Pension Scheme (the 2009 regulations) in Northern Ireland, Ms Brewster would have had to complete a nomination form with Mr McMullan in relation to his pension scheme. The form had not been submitted therefore it had been held that Ms Brewster was not entitled to a survivor’s pension.

This week Ms Brewster successfully challenged her legal rights to her partner’s pension scheme through her application for Judicial Review. The case was heard at the UK’s Supreme Court whereby the 5 Justices held that it was ‘unlawful discrimination’ to deny Ms Brewster the right to the pension payments under Article 14 of the European Convention on Human Rights (ECHR) when read in conjunction with Protocol 1 Article 1 of the ECHR. The European Convention on Human Rights enshrines in law that discrimination with respect to convention rights is illegal. Further to this, Protocol 1 Article 1 of the European Convention on Human Rights provides that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions.’

In England and Wales, under the Local Government Pension Scheme Regulations 2013, there has not been a requirement for a member to nominate their cohabiting partner for survivor’s pension payments, providing that they fit the provisions of a ‘cohabiting partner.’ The provisions are that:

  1. The cohabiting person (P) must have lived ‘for a continuous period of at least two years on the date the member (M) died’ with M; and
  2. They are ‘able to marry, or form a civil partnership’ together’; and
  3. They are living together ‘as if they were husband and wife or as if they were civil partners’; and;
  4. Neither party is ‘living with a third person as if they were husband and wife or as if they were civil partners’; and
  5. ‘Either P is financially dependent on M, or M and P are financially interdependent.’

The number of cohabiting couples who choose not to marry is rapidly increasing and it is therefore important that such couples are aware of their legal rights on the death of their partner. The Law Society president Robert Bourns stated that the decision this week has provided ‘legal clarity for unmarried couples living together,’ however he warned that ‘other areas of unequal treatment, such as the law around what happens to your property if you die without a will, unfortunately still remain.’

At Farleys Solicitors LLP we have an experienced team of family law solicitors who would be able to advise you on your legal rights as an unmarried cohabiting couple. We understand that the death of a partner is a devastating experience for anyone, and the thought of any added stress with respect to a potential legal battle over your partner’s assets is an extremely daunting prospect. We would therefore provide you with advice and guidance on your legal rights and any action that you should take as an unmarried cohabiting couple. To speak to one of our family law solicitors, please call 0845 287 0939 or complete our online contact form.