Supreme Court awards cohabiting partner right to pension

Senior Partner David YoungA woman will be entitled to a survivor’s pension despite her late partner’s failure to fully comply with the requirements of a government pension scheme. The Supreme Court unanimously allowed Denise Brewster’s appeal, holding that the pension scheme’s requirement to nominate a cohabiting partner, if they are to receive a survivor’s pension, should be overridden.

Ms Brewster had cohabited with her partner, William McMullan, for around 10 years. At the time of his death he had worked for Translink, a public sector operator, for around 15 years. Throughout that time he had paid into the Local Government Pension Scheme.

Under the scheme, the pension-scheme member is required to nominate a cohabiting partner if they wish them to be eligible for a survivor’s pension. The survivor must also show that they have been a cohabitant for at least two years before the pension-scheme member’s death. No such requirements exist for married or civil partner survivors.

Ms Brewster believed that Mr McMullan had completed the form to nominate her as a recipient of the survivor’s pension. However, the body that administers the scheme says it did not receive the form and consequently refused to pay her a survivor’s pension.

Gaby Hardwicke Senior Partner David Young (pictured) commented: “Although the public’s awareness of the value of pension provision is growing, this case highlights the importance of getting the paperwork sorted out in order to avoid confusion, uncertainty and, in many cases, financial hardship for loved ones.”

The common law marriage myth

It’s a common misconception that unmarried couples who live together have a ‘common law marriage’ that affords them  the same legal rights as married couples and those in a civil partnership. In reality, while cohabitants do have some legal protection in certain areas, there is no general legal status for such couples.

A cohabitation agreement (also called a living together agreement) can set out how a cohabiting couple’s assets should be divided if they separate. It can also set out any child support and financial maintenance arrangements. To be legally enforceable, a cohabitation agreement must be deemed ‘fair’ in the eyes of the court and both parties should obtain independent legal advice on the agreement which can cover any aspect of the cohabitation including property rights, capital division and pension nominations.

For expert help with drawing up a cohabitation agreement please contact one of our Family Law partners:

Safeguard your wishes with an up-to-date Will

Keeping an up-to-date Will is the best way for cohabitants to ensure their assets are distributed in the manner they would choose in the event of their death.  For expert advice on making or updating your Will please contact one of our Private Client partners:

Previous ArticleNext Article