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08 February 2017

Supreme Court decision on unmarried couples and their pension entitlements on the death of their partner

Spot the difference:

A: Mr Bloggs sadly dies, having accrued a public sector pension through his years of work.  Having agreed with his wife, Mrs Bloggs, to make regular payments into the policy for many years during the course of his employment, the pot is quite significant and upon his death Mrs Bloggs is able to receive the benefit of the accrued sum.

B: Mr Bloggs sadly dies, having accrued a public sector pension through his years of work.  Having agreed with his long term cohabitant and fiancée, Miss Jones, to make regular payments into the policy for many years over the course of his employment, the pot is quite significant, but upon his death Miss Jones is denied any access to the accrued sum.

Until this morning’s decision in the Supreme Court, that was the unfairness that Ms Brewster sought to challenge after the death of her fiancée and cohabitant of 10 years, Mr McMullan. However, by unanimous decision of 5 Supreme Court judges, this injustice was corrected.

Mr McMullan died young and very suddenly only two days after the couple became engaged. Contrary to Ms Brewster’s understanding, he had not completed a nomination form to deal with his pension pot in the event of his death; something that would not have been required if the couple were married.  Crowdfunded Ms Brewster successfully argued in the Supreme Court that such treatment of her by the pension provider breached her Article 14 rights under the Human Rights Act 1998 as it discriminated against her on the basis of her marital status. 

The application of the decision in practice is likely to be much narrower than the impact of the headline and the signal the decision carries.  A nomination form is not usually required by private pension schemes to pass the benefits to surviving cohabitants and therefore the decision only applies to a handful of private pensions or public sector pensions where no nomination form has been completed but where a couple have cohabited for more than two years and are financially interdependent. However, the message is a strong one and it should have ramifications. 

With cohabiting relationships being the fastest growing family type in the UK, with the myth of common law marriage still widespread and in view of the inadequate and highly complex laws applicable to cohabitants on relationship breakdown (as highlighted by the Law Commission in its 2007 cohabitation report), this is an area of law that is long overdue for reform.  It is an area the government has refused to address, but with the Supreme Court decision, not only is there some justice for the people who might be directly affected by the decision but it is to be hoped that it adds a strong voice to the chorus of those calling for this area of law to catch up with society.

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