A Step In The Right Direction For Cohabiting Couples

Today, a judgment was handed down by the Supreme Court in the case of Denise Brewster (Judicial Review) [2017] UKSC 8. The judgment is likely to impact upon pension rights of unmarried couples with public sector pensions and may pave the way for greater recognition of the rights of long term partners who cohabit but choose not to marry.

Denise Brewster and her long term partner William Leonard McMullan had lived together for ten years before December 2009. On Christmas Eve 2009 the couple became engaged but Mr McMullan died suddenly two days later.

Mr McMullan had worked for a public transport operator for 15 years and during this time had paid into a Local Government Pension Scheme. The Pension Scheme was regulated under Regulations enacted in 2009 which, for the first time, provided that a cohabiting surviving partner was eligible for the payment of a survivor’s pension. In order to satisfy this, a nomination must be made by the paying employee and the survivor cohabitee must establish that she had been a cohabitant for two years before the date of the nomination and had been in that position two years before the date of death.

Whilst Ms Brewster believed that a nomination had been made, the statutory body administering the pension scheme asserted that no such nomination was received. The hearing therefore proceeded on the basis that such a nomination had not been made.

The question to be answered by the Supreme Court was: Whether the nomination system was discriminatory against Ms Brewster as a cohabiting partner rather than a spouse or civil partner.

Today the Supreme Court gave its judgment declaring that the requirement that a nomination must be made by the employee be disapplied. The Court held that as the objective of the Regulations was to remove the difference of treatment between a longstanding cohabitant and a married or civil partner, the requirement of a nomination on behalf of a cohabiting partner was therefore discriminatory and could not be justified.

cohabiting couplesElizabeth Gallagher, head of the Family Department at Macks Solicitors commented on the ruling saying; “the case only related to this pension scheme but it will be interesting to see what impact this has on other pension schemes , and also whether there will be other legal challenges in areas where cohabiting couples may assert they are discriminated against such as in connection with inheritance tax and capital gains tax. Many couples choose to co habit and not marry and do not appreciate that in all sorts of ways a co habiting couple do not have the same rights as a married couple. The Law Commission reported several years ago that there should be more legal rights for cohabiting couples but no progress has been made. Hopefully this judgement will be a small step towards recognition that society has changed and the legal system needs to keep pace with this”.


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