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Supreme Court backs cohabitee’s right to receive late partner's pension

Victory for cohabitants could spark challenges to tax laws perceived to be discriminatory

8 February 2017

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The Supreme Court’s decision in favour of the rights of an unmarried woman to her late partner’s pension has been welcomed as a victory for equal treatment before the law for unmarried couples.

Denise Brewster, a lifeguard from Coleraine, Northern Ireland, had been denied payments from her late partner’s occupational pension and argued she was the victim of discrimination under article 14 of the European Convention on Human Rights.

Brewster and her partner, Lenny McMullan, had lived together for ten years and owned their own home. For 15 years McMullan worked for Translink, which delivers Northern Ireland’s public transport services. McMullan died suddenly at Christmas in 2009, aged 43, shortly after the couple got engaged.

If they had been already married Brewster would have automatically shared McMullan’s local government pension scheme. Members of the scheme are required to nominate cohabiting partners before they become eligible for survivors’ pensions. However, the nomination had not been made by McMullan for prior to his death.

After bringing a judicial review of the decision, the High Court found in favour of Brewster. The Court of Appeal allowed the respondents’ appeal, finding the nomination requirement was neither unjustified nor disproportionate.

Prompted by the High Court judgment, the equivalent regulations in England, Wales, and Scotland were amended to remove the nomination requirement. When Brewster became aware of these changes, she applied to the Court of Appeal for her appeal to be re-opened, but was refused.

Today the five justice court ruled unanimously that the requirement for a nomination form should be removed from the pension scheme.

Lord Kerr said he considered the objective of relevant provisions in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 ‘must have been to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member’.

He continued: ‘To suggest that, in furtherance of that objective, a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellant’s article 14 right [ECHR] is, at least, highly questionable.’

Nicola Waldman, a private client partner at Hodge Jones & Allen, said decision is hugely significant for cohabiting couples where one of them is working in the public sector, but could also have implications for other areas of perceived discrimination against cohabitees.

‘They could now expect to be entitled to their partner’s pension on their death, even if they have not been nominated in the relevant paperwork. While the equivalent regulations for local government schemes in England, Wales, and Scotland were amended in 2013/2014 to remove the nomination requirements, this judgement may now impact on the rest of the public sector.

‘For those with private sector pension schemes, most provide for unmarried partners. In cases where they don’t however, I would expect this to be reviewed in the light of the judgment.’

Waldman added that the ruling could spark fresh legal challenges in other areas of perceived discrimination against cohabiting couples, including inheritance tax, and capital gains tax.

‘In this judgment the Supreme Court has said it was the duty of the state to secure Ms Brewster’s right to equal treatment under article 14 of the ECHR rather than setting out a requirement that this right must simply be respected. If the state must be proactive in promoting equal treatment, then we could see this argument used in relation to the tax regime.’

Inheritance tax laws allow married couples and civil partners an exemption from tax altogether, while cohabiting couples are only exempt up to £325,000, impacting many who own property together. Similarly, spouses and civil partners can transfer assets to each other and be exempt from capital gains tax, unlike cohabitants.

‘It is feasible that cohabitees could now argue that these differences amount to discrimination, with huge implications for the tax regime in this country,’ said Waldman.

Sally Pike, a partner and head of family at Coffin Mew Solicitors, said the ruling raises yet further questions: ‘What is a long-standing cohabitee? Do you have to be engaged, own property together to show a joint financial commitment or have been living together for a period of time and if so, how long?

‘All of these will need to be answered, but there is no question that this finally starts to move the law in this area and is more in tune with the fact that over six million couples are now living together without being married.’

Graeme Fraser, Resolution’s spokesperson on cohabitation, said the decision would place millions of unmarried couples in the UK on a fairer footing.

‘As the fastest growing family type in the UK, it’s crucial that these 3.3m cohabiting couples, alongside any children they may have, are provided considerably greater legal protection,’ he said. ‘Otherwise, as things stand, they are left vulnerable on the death of their partner or on relationship breakdown – hopefully today’s verdict paves the way for this to change.’

Also reacting to the decision, the Law Society’s president, Robert Bourns, said: ‘Equality before the law is a vital part of the free and fair society we all want to live in, and the label people choose to put to their relationship should not change that.

‘Today’s decision provides welcome legal clarity for unmarried couples living together, and is a step towards equal treatment across the diverse family circumstances people now create.’

Denise Brewster was represented by Helen Mountfield QC and Deighton Pierce Glynn.

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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Private client Pensions Family