While it remains a popular misconception that cohabitees have the same rights as married couples/civil partners, the reality is that they are largely unprotected by the current law.
However, a recent landmark decision by the Supreme Court, in which an unmarried woman was granted rights to her late partner’s pension, marks a significant extension of the rights of cohabitees and a major development in this area.
Ms Brewster had been in a long-term relationship with her partner, Mr McMullan, prior to his unexpected death in 2009 that happened two days after their engagement. During their relationship they had cohabited for a period of 10 years and had owned a property together. At the time of his death, Mr McMullan was employed by, and had worked for public transport operator Translink for approximately 15 years, during which time he had paid into the local government pension scheme.
Ms Brewster applied for the survivor’s element of Mr McMullan’s pension to be paid to her, a payment which she would have received automatically had the couple been married. The payments were denied on the basis that Mr McMullan had not submitted the requisite form nominating Ms Brewster as eligible to receive the survivor’s pension, despite the fact she met all other criteria. Ms Brewster’s legal team argued that the requirement to complete the form was disproportionate and discriminatory on the basis that it breached Article 14 (prohibiting discrimination in the way human rights law is applied) and Article 1 (right to property and the peaceful enjoyment of possessions).
Five supreme justices unanimously ruled that to distinguish between a long-standing cohabitee and a married/civil partner with regards the payment of a survivor’s pension would amount to a breach of Ms Brewster’s human rights and as such she was entitled to receive the payments.
While the decision brings the rights of cohabitees in relation to pensions into line with those of spouses, it does not cast any light on what is to happen when a cohabitee relationship ends by separation rather than death. Furthermore, it is limited to the issue of pensions and does not provide equal sharing rights for cohabitees in relation to other assets such as property, or equal rights in other areas such as tax exemption, all of which apply to married couples/civil partners. While it can be seen to be a step in the right direction in recognising the rights of cohabitees and providing them with the same legal protection as spouses/civil partners, the only way to provide certainty as a cohabitee is to enter into a Cohabitation Agreement – a legally binding document entered into by both parties which deals with the division of the parties’ assets upon separation/death.
If you require specialist advice in relation to your rights as a cohabitee, or you wish to discuss the prospect of a Cohabitation Agreement further, please do not hesitate to contact a member of our family team on +44 (0) 203 814 2020.