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Greater rights for cohabiting couples?

View profile for Sam Miles
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After an eight year legal battle, a Northern Ireland woman has won her case in the Supreme Court to claim a share of her former partner’s pension, who died in 2009.  Sam Miles, Family Partner, reviews the case here and explains that, while this now brings Northern Ireland in line with laws already in England, Wales and Scotland, this does have larger implications for cohabiting couples rights.

The case was brought by Denise Brewster who had been living with Lenny McMullan for 10 years when he proposed on Christmas Eve 2009.  Tragically, he died suddenly in the early hours two days later on Boxing Day. 

Mr McMullan had been working for Translink, which runs Northern Ireland’s public transport services.  Consequently, he had paid into Northern Ireland’s government pension scheme, which requires that for any cohabiting partner to receive a survivor’s pension, they must complete a form nominating that person; an action that Mr McMullan had not done and so Ms Brewster was denied the pension.  If married to Mr McMullan, Ms Brewster would have automatically shared the pension.

Discrimination against human rights

Ms Brewster took legal action to claim the pension, with her lawyers arguing that the form was disproportionate and in effect discriminatory, therefore going against Ms Brewster’s human rights which state that you must have peaceful enjoyment of your possessions, and that your rights should be secured without discrimination. 

The Supreme Court agreed and ruled that it was unlawful to not pay her the pension and that the nomination form should be removed from the pension scheme; a ruling that will have a significant impact on public sector pension schemes in Northern Ireland.

Cohabitation agreements

“Unfortunately co-habiting couples do not have the same rights as married couples or civil partners in terms of what happens to finances or property should one of them die,” explains Sam.  “There are two main ways a couple can protect themselves for the future; either through a cohabitation agreement or a Will.  Without a Will, the distribution of assets would be decided by the Intestacy rules, which do not include a cohabiting partner and instead would typically go to children, or parents and other family members.

“A cohabitation agreement is a different type of formal agreement setting out what would happen in the event of a couple’s separation or death.  This can be drawn up either at the beginning of a relationship or during, and will specify what assets are held between the two parties and how they are to be divided.  We would always recommend having both a Will and cohabitation agreement in place, as they cover such different elements of a relationship and the shared assets.”

The number of cohabiting couples is on the increase, with more than 6 million couples cohabiting in 2015 compared to fewer than 3 million in 1996.  “While this ruling moves cohabiting couples closer to having the same rights as married couples and those in a civil partnership, it’s still important that these couples protect themselves with Wills and cohabitation agreements,” concludes Sam.  “This case focussed purely on pensions, but many other areas can be affected by the fact that a couple is only cohabiting and not married, such as inheritance tax, property implications and capital gains tax, so seeking legal advice to ascertain how best to set up an agreement is important.”

If you’d like advice on setting up a cohabitation agreement, you can contact Sam on 02380 717431 or email familyenquiries@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.