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This week we’ve seen the law make a significant move towards better recognition of the modern family. The Supreme Court has recognised the right of someone who shared a home and life with a worker to claim a pension after their partner’s death on the same terms as if they had been married. You can click here for the full judgment.

The claimant, Denise Brewster, lived with her partner William McMullan for ten years. On Christmas Eve 2009, they became engaged, but tragically William died just two days later. At the time of his death, William had been working for the Northern Irish public transport provider Translink for about 15 years. He had paid into the Local Government Pension Scheme throughout his employment and had built up a decent pension entitlement.

In order for Denise to be able to claim a survivor’s pension after William’s death, the pension scheme required that he must have completed a nomination form in her favour. She also had to show that she had been a cohabitant for two years before the date on which he had sent through the nomination, and also that she had been in that position for two years before his death. Denise thought that William had completed the nomination form but the scheme could not find it, and they refused to pay her the pension.

Denise applied for judicial review of that decision, attacking the need for a nomination form at all. There was no requirement for a married person to complete a nomination form in favour of their spouse, and therefore Denise argued that the scheme’s decision was discriminatory (and in breach of the European Convention of Human Rights). At the time, the scheme’s provisions about survivor’s pensions for cohabitants reflected standard terms across most local government pensions; but after Denise’s initial appeal was turned down by the Court of Appeal, these standard provisions were reformed. The requirement for a nomination form for cohabitants was removed. Denise applied to the Supreme Court for the reopening of her appeal, and ultimately for the grant of the survivor’s pension.

The Supreme Court considered that the requirement that the scheme member should have completed a nomination form to leave their pension to a cohabitee, but not to a spouse, was indeed discriminatory. The Regulations in place at the time could justifiably require evidence to establish the existence and subsistence of the cohabiting relationship, as indeed they did, but to require a specific nomination to be completed in addition did not further the evidential process. It was an unnecessary additional hurdle, which frustrated the ultimate objective of the Regulations, specifically to include cohabitants in the survivor’s pension.

This is a welcome decision in a legal landscape for cohabitants where progress appears otherwise to have stalled. There is still no legal framework surrounding cohabiting couples, no regime to sort out who owns what on separation, and sparse ability to compensate economically disadvantaged partners who have made sacrifices to rear children. Those seeking to make claims have to rely on a complex and disparate set of strict legal principles from land and trusts law and children law (where relevant), and the concept of fairness we know well from matrimonial law is very rarely a factor.

The situation for cohabiting couples was considered by the Law Commission, which produced a report ten years ago recommending the introduction of a regime that would provide limited compensation in circumstances where one person had been disadvantaged by a cohabiting relationship. Regrettably, the government decided not to take the reforms forward.

In the face of the government’s unwillingness to introduce this important social reform, Lord Marks of Henley-on-Thames introduced The Cohabitants’ Rights Bill into parliament in June 2016. It is a gentle and sensible start, but the date for the Bill’s second reading has not yet been announced. With the government and its legal draftsmen now thoroughly occupied with Brexit, we suspect the chances of it getting any parliamentary time or traction are increasingly slim. In the meantime, the ability of our judges to move society forwards in respecting and honouring different forms of personal commitment can only be based on the individual cases that come before them and the law as it stands. They can’t fix it by themselves.

For whatever reason, marriage is becoming less relevant in our society, particularly among the young and in lower socio-economic communities. There are about 3.3million cohabiting couples in the UK at the moment, a number that has doubled in size in the last 20 years. Many of those couples have children, who, together with their carers, are left potentially vulnerable when a cohabiting relationship ends or a parent dies. We very much hope that this judgment of the Supreme Court is the start of better legal protection for cohabiting couples and their children.

As always, if you have any questions about living together or any other aspect of family law, please give us a call on 01223 443333 and make an appointment to speak to Adam, Sue, Gail, Tricia or Simon.

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