Cohabitants and pensions â€“ jointly and severally
While the immediate significance of Brewster is limited, it once more shines a light on the differences in law between married and cohabiting couples, explains Shlomit Glaser
The decision of the Supreme Court In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland)  UKSC 8 has attracted considerable media attention. In part, this may be because of the compelling back story: a woman who had lived with her fiancÃ© for ten years, his early death, and the way that she had been denied the survivor’s pension to which she was entitled because a nomination form had not been completed
In hindsight, the decision makes one wonder how a case where the conclusion now seems so obvious could have required the attention of nine judges of the higher courts to resolve.
Under the terms of the relevant local government pension scheme in Northern Ireland, Denise Brewster was entitled to a survivor’s pension provided certain criteria had been met. These included that the couple had lived together for two years and there was financial dependence or interdependence.
Additionally, there was a requirement that the scheme member had completed a form nominating the survivor. No such nomination was required in respect of a married couple. In the reasoning of the Supreme Court expounded by Lord Kerr, the applicant had been deprived of her entitlement because the form had not been completed.
Significantly, perhaps, the requirement for nomination had been removed in England, Wales, and Scotland with effect from 2014. There does not seem to have been any convincing evidence as to why it had been retained in Northern Ireland, especially when the previously espoused policy in the province was to mirror the requirements elsewhere in the United Kingdom.
On the application of the now familiar proportionality test, the conclusion expressed by Lord Kerr was that the objective of the pension scheme must have been to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member and that there was ‘no rational connection between the objective and the imposition of the nomination requirement’.
The immediate significance of this decision is therefore limited. It is a decision about a pension scheme that has been superseded elsewhere in the UK. Of course, any public sector scheme that does still require nomination of a cohabitant to qualify for a survivor’s pension will need to be revised. And private sector schemes, although most do recognise cohabitants, will no doubt look at the decision with interest.
More broadly, the case is significant because it once more shines a light on the differences in law between married and cohabiting couples. Death is no doubt the most drastic form of separation, but there is a certain irony that the surviving cohabitant is entitled to a survivor’s pension, whereas – unlike in the case of a married couple – there is no question of splitting a pension upon voluntary separation. And if there is no will, the surviving cohabitant will not inherit.
For the married person, the law provides a range of protections in respect to inheritance, tax, and property that are not available to the cohabitant. Where there has been oversight or neglect on the part of the deceased in making arrangements in the event of their death, the law steps in to provide protection.
The default position of the law is that of a couple is married (or in a civil partnership). Every family solicitor is familiar with cases where one partner (and it is usually a woman) has given up a career to act as a home-maker while the other (usually a man) has been building a business. The difference in outcome between the married woman and the cohabitant can be little short of catastrophic in terms of future security.
Lord Kerr notes that being a cohabitant is a matter of choice. That is just as much the case as getting married. Unfortunately, many of those who decide to cohabit rather than marry (or form a civil partnership, if available) do so in ignorance of the legal consequences.
However, where the choice has been made that marriage is not to be the basis of the long-term relationship, the cohabitant cannot be passive and rely upon the law for protection. There are different things that can be done, whether in terms of contractual arrangements, ownership of property, terms of a will, and so forth. The difficulty is that many will not take these steps.
What is necessary, perhaps, is a default position that a cohabiting couple will be treated in a similar way to a married couple, provided certain criteria in terms of length and stability of relationship have been met. There would be provision for an opt-out.
But that is a discussion for another day and depends upon a change of legislative policy. At the moment, the policy reflected in legislation such as the Children Act 1989, and, indeed, the absence of legislation on cohabiting, means that the choice between marriage and cohabiting continues to have dramatic consequences for the individual.
Shlomit Glaser is a solicitor at Glaser Jones Law