News | Legal News

08 February 2017

Survivor’s pension ruling ‘could affect millions of cohabitees’

A woman who challenged a judgment that she was not automatically entitled to her late partner's pension has won a landmark ruling at the Supreme Court.

Five justices unanimously decided that 42-year-old Denise Brewster should receive the same rights to a "survivor's pension" as she would have been if she had been married to Lenny McMullen, who died suddenly in 2009.

Ms Brewster's solicitor, Gareth Mitchel, says the judgment reflects that equal rights apply to cohabitees as they do to married couples, and could affect millions of people across the UK.

Speaking after the ruling, Mr Mitchel said: "Denying bereaved cohabitees access to survivor pensions causes huge distress and financial hardship.

"Now that around one in six families in the UK are cohabiting families, reform is long overdue."

History

Ms Brewster had lived with Mr McMullen for 10 years and got engaged on Christmas Eve in 2009.

However, Mr McMullen, a public sector worker with Translink, tragically died between Christmas night and the early hours of Boxing Day morning.

Having had 15 years' service with the Northern Ireland public transport service, Mr McMullen had been paying into the local government pension scheme.

Under the regulations governing the scheme, a survivor's pension is paid automatically to a spouse; however unmarried partners are required to opt-in with a signed declaration.

Despite meeting the criteria for opting in, the Northern Ireland Local Government Officers' Superannuation Committee rejected Ms Brewster's claim, saying a signed nomination was not received from Mr McMullen.

Ms Brewster has since been involved in an eight-year legal battle for justice.

The High Court in Northern Ireland initially ruled in her favour against the refusal, but the decision was overturned by the Northern Ireland Court of Appeal.

Giving the Supreme Court's ruling, Lord Kerr ordered the nomination requirement in the 2009 regulations to be "disapplied", saying that the  requirement for a surviving cohabitant to be nominated by the scheme limits Ms Brewster's rights under Article 14 of the Human Rights Act.

The rule the justices have declared unlawful is found in most of the UK's public sector pension schemes, affecting 12 million members, Mr Mitchel has said.

Lucy Fisher, senior associate in Wills, Trusts and Probate comments:

"This is certainly a positive ruling and there has been a move over the years to bring the rights of cohabitees in line with that of married couples, for example if they have been living together as husband and wife they can make a claim under the Inheritance Act 1975 - but the position of a spouse is still preferential to that of a cohabitee as a cohabitee has to show they have a need for financial support.

"In addition, while they may have more rights, it is still likely to involve some form of legal proceedings and possibly court proceedings.

"It therefore remains crucial that couples who live together as husband and wife review their affairs and ensure they have adequate protection in place, via a will and the correct pension provisions, to avoid the need for legal proceedings."

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