Co-habitation has once again come under the spotlight with the recent Supreme Court decision that denying bereavement benefits to unmarried, cohabiting partners with children is incompatible with the European Convention on Human Rights (ECHR).

The case – An application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 – centred around the widowed parent’s allowance (‘WPA’) – a contributory, non-means-tested benefit payable to men and women with dependent children who were widowed before March 2017. Ms McLaughlin’s partner, John Adams, died on 28 January 2014. They had lived together for 23 years and had four children. In accordance with the benefits rules, Ms McLaughlin was refused WPA on the grounds that she and Mr Adams were never married.

Ms McLaughlin applied for judicial review of that decision on the basis that the relevant rule was incompatible with the ECHR. The issue was whether the requirement for marriage unjustifiably discriminated against the survivor and/or the children on the basis of their marital or birth status, contrary to article 14 of the ECHR when read with either the right to respect for family life (article 8), or the protection of property rights (Article 1 of the First Protocol).

The Supreme Court agreed with Ms McLaughlin and found that the relevant law is incompatible with the ECHR. The court stressed that WPA exists because of the responsibilities of the deceased and the survivor towards the children, and its purpose is to diminish the financial loss caused to families with children by the death of a parent. It is noteworthy that in most other EU member states, survivor’s pensions are paid directly to the children irrespective of birth status. Next, it will be for the government to decide whether the relevant law should be changed.

WPA was replaced in April 2017 with Bereavement Support Payment, but cohabiting parents are still ineligible for this new benefit. The Supreme Court has now established a principle that bereaved children shouldn’t be disadvantaged because their parents weren’t married. As cohabiting couples are now the fastest growing family type in the UK, the problem will only get worse over time.

Hopefully, Parliament will apply this principle as soon as possible to the new benefit, in line with recommendations made over two years ago by the House of Commons Work and Pensions Select Committee. Otherwise, another bereaved family like Siobhan’s will have to bring a test case, putting themselves through the gruelling emotional and practical challenges of coming to court.

If you have any questions about cohabitation or any other family matter, you can call 01223 443333 and make an appointment to speak with Tricia, Adam, Sue, Simon, Gail or Jeremy.