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Another small step forward for cohabiting couples?

Denying bereavement benefits to cohabiting partners is incompatible with human rights law, judges have ruled.

In a Northern Irish case in which the National Childrens Bureau intervened with pro bono help from Irwin Mitchell, the Supreme Court ruled that legislation denying certain benefits to unmarried couples with children is incompatible with the European Convention on Human Rights (ECHR).

Human rights of bereaved children

Siobhan McLaughlin had lived with her partner John Adams for 23 years and they had four children together, the youngest of whom was 11 when Mr Adams died in 2014. Under Northern Irish law a bereaved parent who was married or in a civil partnership with the deceased would be entitled to Widowed Parent’s Allowance (WPA) - a non-means tested benefit based on lifetime contributions made by the deceased.

Mr Adams qualified for the benefit but Ms McLaughlin was refused it when she applied. The first instance judge agreed with Ms McLaughlin that this was unjustifiably discriminatory and incompatible with the ECHR, but the decision was reversed by the Court of Appeal.

The Supreme Court confirmed that whilst it is a legitimate aim of government to want to promote marriage, it was not proportionate to deny Ms McLaughlin and her children the benefit of her partner’s financial contributions on the grounds that they were not married.

With cohabiting couples being the fastest growing family type in the UK, these are not issues that are going to go away.

It is still a widely held misconception that there is such a thing as a ‘common law spouse’. There is not. Unmarried partners who cohabit, no matter for how long, do not have the same legal status, rights or obligations as married couples. Many people only realise this upon significant life events such as separation or one partner dying, and the consequences can be financially devastating.

The relevant issue here was not the public commitment of marriage, but that they had raised children together. The purpose of WPA was to support children whose parent had died. As the National Children’s Bureau testified, in most Council of Europe States children are directly eligible for bereavement benefits up to a certain age – they are not paid via a surviving parent and the marital status of their parents is irrelevant.

The court noted that it may not be unjustified discrimination in every case to exclude unmarried couples from receipt of WPA, but it would be discriminatory in a sufficient number of cases that the court should declare the legislation incompatible with the ECHR. It was clearly discriminatory on the facts of this case, where the couple lived together for many years, were recognised as doing so for other purposes by the authorities, and were parents of all the children involved.

Progress for cohabitees

This is not the first case where the Supreme Court has found in favour of a cohabitee. In February 2017 the Supreme Court ruled that Ms Brewster was entitled to survivor’s benefits from her late partner’s public sector pension, despite the fact they were not married and he had not completed a form nominating her as beneficiary. Had they been married she would have benefited automatically.

However whilst the Supreme Court seems to be recognising the need for the application of the law to keep track with societal norms, much more is needed if there is to be real change.

In Ms McLaughlin’s case, one Judge of the Supreme Court, Lord Hodge, disagreed with the majority on the basis that he considered WPA was for the benefit of the surviving partner, not the children and therefore the distinction drawn for cohabitation was justified. This demonstrates that marriage and cohabitation remain on a very different footing.

It certainly remains the case that living with someone does not give rise to financial obligations on separation. A former partner will not be entitled to maintenance for themselves, or an automatic share in any property. There may be claims on behalf of any children, but not for the individual adults themselves unless claims can be brought under property or trust law. A cohabitee will also have a lesser entitlement to claim against a deceased partner’s estate, so it is very important to make a Will.

There can only be substantive change to this through legislation, which is not imminent, so couples considering moving in together should be sure to take legal advice to protect themselves, each other, and any children they have.

Find out more about unmarried couples' rights

Published: 18 September 2018

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September 2018

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Zoe Round