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Unmarried woman wins right to late partnerís pension- Equality at last?

Those watching the news earlier this month will be familiar with the recent story of Denise Brewster who won an appeal in the Supreme Court which will improve the pension rights of millions of unmarried couples across the UK. Senior associate and joint head of Silverman Sherliker’s Family Law department, Navdip Dhariwal, explains the case and what it may mean for co-habiting couples.

Denise and her partner, William were engaged on Christmas Eve in 2009 but had lived together for some 10 years before December 2009. They had purchased a house together in 2005. Sadly William died two days after their engagement. It was a sudden and unexpected death and William was only 43 years old. Neither of them had any children and William did not make a will.

At the time of William’s death he was employed by Translink having worked for them for approximately 15 years. He was an active member and made regular payments to the Local Government Pension Scheme. In April 2009, changes to the scheme meant that cohabiting surviving spouses became eligible for the payment of the pension and other benefits to survivors of members. However, in order to qualify for payment of the pension, a cohabiting surviving partner had to be nominated by the member. Denise was under the belief that William had nominated her and completed a form confirming this. The administrators of the scheme stated that they never received such form. They subsequently refused to pay her a survivor’s pension.

Denise applied for judicial review of this decision and argued that the imposition on unmarried members to complete a nomination form was discriminatory as the same was not imposed on married members within public sector pensions. The High Court held the requirement for nomination was incompatible with article 14 of the European Convention on Human Rights (which prohibits discrimination) and article 1 protocol 1 (peaceful enjoyment of possessions). However, the Court of Appeal allowed an appeal by the respondents and stated that the nomination requirement were neither unjustified or disproportionate.

Following on regulations in the UK were amended to remove the nomination requirement in those schemes. Denise became aware of these changes and applied to the Court of Appeal for her appeal to be re-opened but this was refused and she subsequently appealed to the Supreme Court.

The Supreme Court unanimously allowed the appeal In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8 and declared that the Government Pension scheme requiring for prior nomination for cohabiting couples should be dis-applied. As a result, Denise will now be allowed her late partner’s pension.

There are significant differences between cohabiting and married couples and it is likely that this landmark decision will afford cohabiting couples with the same level of protection that married couples are automatically entitled to in relation to pensions. It is predicted that many schemes are likely to alter their policies to reflect that upon a member’s death there is protection for the surviving partner.

The wider issue is whether there needs to be an overhaul in the law for cohabiting couples so they are granted greater legal protection. According to the Office of National Statistics, “cohabiting couple families were the fastest growing family type between 1996 and 2016, more than doubling from 1.5 million families to 3.3 million families” but there is currently no such thing as common law marriage in UK law, meaning cohabiting couples do not have the same legal rights as married couples. Many individuals and organisations such as Resolution (a specialist organisation for family lawyers and professionals), have campaigned for legal protection for cohabiting couples but there is still no change in this area of law.

There is limited protection on separation and on death for cohabiting couples, often despite many being in long-term relationships and/or having children. Ensuring you have financial security should be a priority if the relationship unfortunately deteriorates and you are not married or in a civil partnership.

It is hoped that the introduction of the ‘The Cohabitation Rights Bill’, which can be accessed through the following link http://services.parliament.uk/bills/2015-16/cohabitationrights.html will alleviate the problem and address the rights of cohabiting couples but is in the early stages of passing through Parliament and change is unlikely to happen swiftly.

If you are cohabiting but are not keen to get married or enter a civil partnership, there are a number of steps you and your partner should consider taking to arrange your financial affairs sensibly such as cohabitation agreement. Not knowing what your rights are can become costly in the future.

Our specialist family team have considerable experience in dealing with these types of matters. If you have any questions on this difficult topic or would like advice in this area, please call Navdip Dhariwal, Senior Associate and Joint Head of the Family Department, who can make that process easier with a sensitive and sympathetic ear. You can speak to her on 020 7749 2700 or alternatively email on family@silvermansherliker.co.uk

We are members of Resolution and are required to follow the Resolution code of practice which commits family lawyers to resolving disputes in a non-confrontational way, preserving people’s dignity and encouraging agreements.

This is a general summary of the law. It should not replace legal or tax advice tailored to your specific circumstances.

Navdip Dhariwal advises on all areas of family law. She can be contacted, in strict confidence, on nkd@silvermansherliker.co.uk or +44 (0)20 7749 2700.

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