09 February 2017

The Supreme Court has ruled that Ms Brewster was entitled to her late partner’s public sector pension, despite them not being married and him not having completed a form nominating her as an eligible survivor.

Ms Brewster had lived with Mr McMullan for around ten years before his sudden death in 2009, two days after their engagement. Mr McMullan was at the time employed by Translink (a public transport service), and had for fifteen years paid into the Local Government Pension Scheme. The pension administrator refused to pay Ms Brewster a survivor's pension on the basis that they were unmarried and Mr McMullan had not completed a form naming her as survivor. Married couples did not have to fill in the nomination form, and had they been married Ms Brewster would automatically have been entitled to share Mr McMullan’s pension.

Unlike married couples, cohabiting partners do not generally have automatic rights to pensions or other assets upon death or separation. Ms Brewster was able to rely on the European Convention on Human Rights to argue successfully that preventing her access to the survivor's pension was discrimination against her as an unmarried cohabitant, and couldn’t be justified in this case.

What does the decision mean for cohabiting partners?

While this may appear to be good news, cohabitants still don’t have the same rights as married couples or those in a civil partnership. It may be that some public sector pension schemes change their rules and practices following the judgment to automatically benefit cohabitants, but it is unclear whether that would apply to all cases, or retrospectively. While many private sector pensions provide automatically for survivor's benefits to unmarried partners, this is not always the case so cohabitants should consider checking carefully the rules in relation to their own schemes.

There is no such thing as a “common law spouse”, so cohabitants cannot assume that the law will provide for them as if they were married. Cohabitants should consider making a will to reflect their wishes after death, and cohabitation agreements can be used to protect each party's position upon separation. The law has not kept pace with modern lifestyles, and while the tide may be turning it is imperative that couples take the initiative themselves.

If you would like any advice on these issues, please contact Alison Hawes or a member of the family team.

Written by Alison Hawes and Molly Paatz.

A victory for cohabitants in pension claims, but not a seismic change

The law has not kept pace with modern lifestyles, and while the tide may be turning it is imperative that couples take the initiative themselves.
Alison Hawes, Consultant

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