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Landmark victory for cohabitee

In February 2017, Denise Brewster won her claim that she should automatically receive her late partner’s ‘survivor’s pension’, despite the fact that they were not married. The case highlights the inadequate financial provision automatically available for unmarried couples on death or separation.
Translink’s Occupational Pension Scheme
Ms Brewster’s legal action related to the ‘survivor’s pension’ offered by her partner’s employer, Translink. Under the terms of the scheme – the local government pension scheme – unmarried partners could receive their partner’s pension if the scheme member had completed the relevant nomination form. Married partners automatically received the pension with no need for a nomination form to be completed. Ms Brewster met all the other criteria (unmarried but in a stable long-term relationship) to receive her partner’s pension, except that the nomination form had not been completed. As a result, she was not entitled to the pension when her partner died suddenly from a brain haemorrhage two days after they got engaged. Had they been married, or in a civil partnership, she would automatically have received the pension.
The route to the Supreme Court
Although she succeeded before the High Court in Northern Ireland, the Northern Ireland Local Government Superannuation Scheme challenged the decision, and the Court of Appeal overturned it. Ms Brewster argued before the Supreme Court that the discrimination she suffered, based on her marital status, also breached Article 1 (the right to peaceful enjoyment of property) and Article 14 (the right to equal treatment) of her human rights. The Supreme Court ruled unanimously in her favour in a decision that will have huge implications for public sector pension schemes across the UK, as well as for some private pension schemes which have such a rule. The court found that the pension scheme contained provisions designed to “…remove the difference in treatment between a long-standing cohabitant and a married or civil partner of a scheme member”, and that “the requirement to sign a nomination form was unjustified because it was not rationally connected to that objective.”
The myth of ‘common law marriage’
Despite a widely-held belief in the concept of a ‘common law marriage’, the truth is that there is no such thing. This has led to any number of problems for (largely) women who find themselves unprotected by the law following a relationship breakdown or the death of their partner. At what is already a time of great stress, unmarried parties have to take complicated legal action to recover property or to try and assert their rights, fighting for their voices to be heard because there is no formal recognition of their relationship. In many cases, there is no legal aid available – Ms Brewster had to resort to crowdfunding to pay her legal fees – which means that many are unable to recover property or rights when a relationship breaks down or a long term partner dies.
A move towards rights for cohabitants
This is a huge decision from the Supreme Court which could have a far-reaching impact on the current efforts under way to reform the law in relation to rights in life and in death for unmarried partners.
Susi Gillespie, Family Law Partner at Thomas Mansfield Family Law explains
I am a member of Resolution’s Cohabitation and Equalities Committee and we perused this judgment with great interest and excitement when it was published.  The committee is currently working with the FLBA in respect of proposals to reform cohabitant rights on death, and we hope that the decision of the Supreme Court will go some way to support these reforms, not just on death, but on separation too.
Cohabitation is the fastest growing form of family unit in the UK at the moment, and there’s an urgent need for reform, not only to protect those in these relationships, but also children of cohabiting couples. We’ll be keeping you up to date with any changes that follow this judgment, and the outcome of work Resolution is doing.