Earlier this year we opened our doors to University of Winchester’s brightest law students and gave them some valuable time with Jennifer Williamson, one of our senior solicitors, learning about life in a national family law firm. These same aspiring solicitors were also invited to submit articles for our blog. This was a chance for them to be published online and boost their online profiles. We received some strong submissions but in the end narrowed the field down to two. The runner-up will be published today and the winner on Monday.
England and Wales have seen a considerable rise in the number of cohabiting couples in recent years. The number of heterosexual cohabitants has risen from 1.5 million in 1996 to 3.1 million in 2015. Similarly, the number of same-sex cohabitants rose from 16,000 in 1996 to approximately 90,000 in 2015. The Office for National Statistics recorded 247,372 marriages between heterosexual couples in 2014, an increase of 2.7 per cent from 2013; but 6.2 per cent lower than in 2012.
Are cohabiting couples disadvantaged by the law?
There is a long history of statutory protection for married couples, even though marriage is declining. Despite this staggering rise in unmarried cohabitants, there has been no attempt by Parliament to implement any substantial statutory rights for cohabiting couples in terms of pension schemes. It could be argued that cohabiting couples are legally disadvantaged because they are in a different position to married couples.
A move in the right direction?
However, this could soon change. Denise Brewster was in a cohabitant relationship for 10 years and became engaged to her partner two days before his death. Brewster would have suffered serious hardship following her partner’s death, because the pension fund declined to pay out on the basis that the couple were not married. Brewster took her case to the Supreme Court which resulted in a landmark ruling.
Brewster’s partner of ten years failed to name her as a beneficiary in his occupational pension fund with Northern Ireland’s local government pension scheme. It is not required that a married couple nominate a beneficiary in writing for the purposes of such a fund, on the basis that they are legally married. In 2012, Brewster had taken her case to the High Court and won. Unfortunately, the Northern Ireland Local Government Superannuation Scheme then appealed this decision in 2013. Brewster lost by a two to one majority in Northern Ireland’s Court of Appeal.
There was no legal aid to help Ms Brewster take her case to the Supreme Court. To raise the initial £4,000 she received crowd-funding. You may consider this evidence that the people of England and Wales agree that the government is ignoring all evidence of social change in relation to the rights of cohabiting couples.
Brewster raised the necessary funds and took her case to the Supreme Court and there the Justices departed from the traditionalist concept of marriage. She argued that she had been discriminated against because she was unmarried. Notably, Lord Kerr stated: “a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellant’s Article 14 right [under the European Convention on Human Rights], is, at least highly questionable.’ He ordered that that nomination form which should have been signed by Brewster’s deceased cohabitant to render her a beneficiary of the fund was to be ‘disapplied.’
What happens next?
This case has set a precedent for hundreds of cohabitants with public sector pension schemes. It should now be unnecessary for long-term cohabiting couples to sign such forms, because the Supreme Court decision is clear: cohabitants should now be automatically entitled to their pension upon a partner’s death. It is arguable that anything less would amount to discrimination.
However, it is unclear what constitutes as a long-term cohabitant relationship and financial interdependence. Therefore, it remains to be seen what conditions may be imposed on cohabiting couples to claim under public sector pension schemes. Brewster’s recent engagement [at the time of her partner’s death] may have influenced the court’s decision to allow her to benefit under the scheme.
This landmark decision could prompt further change and new rights for cohabiting couples. Whilst this is a small step in the right direction, England and Wales still have far to go. This country has long awaited the recognition of rights and protection for cohabiting couples, similar to those in place for married couples.
With the consistent rise in cohabiting couples and families, the law’s current approach seems outdated and inappropriate. The government can no longer cling onto the traditional concept of marriage and ignore this trend of modern society. Cohabiting couples would benefit from similar statutory protection to Scotland. In the words of Lady Hale in Gow v Grant, ‘there are lessons to be learned from this case in England and Wales.’
Photo of Winchester Cathedral by Graham Horn via Wikipedia under a Creative Commons licence