K J Smith Solicitors

Pension fight won by cohabiting partner in Supreme Court

Published: 16 February 2017

A unanimous decision in the Supreme Court has allowed Denise Brewster an appeal, announcing that the requirement of her and her late cohabiting partner, William McMullan, to make a nomination to the pension scheme should not apply. This decision will mean that Ms Brewster will now receive a survivor’s pension.

The requirement within the Local Government Pension Scheme Regulations 2009 states that any unmarried cohabiting partners should be nominated by their partner, who is a pension scheme member, to be allowed the survivor’s pension. The surviving partner must be able to show that they had been a cohabitant for 2 years prior to the date that the nomination was sent in by the member, and also that they have been in that position for two years before their partners death, despite there being no similar requirements for marriage or civil partnership survivors. The reasoning behind the creation of the nomination requirement was to determine cohabiting relationships equivalent to marriage or civil partnerships. The regulations also require the surviving partner to prove that the relationship genuinely existed.

Ms Brewster lived with her partner for approximately 10 years before December 2009. On Christmas Eve of 2009, the pair became engaged, with Mr McMullan dying two days later. Before his death, he worked at public transport operator Translink.

Throughout the duration of his employment at Translink, Mr McMullan paid into the Local Government Pension Scheme. Ms Brewster believed her late partner had completed a form that would see her nominated as an eligible survivor for the pension scheme. However, NILGOSC (Northern Ireland Local Government Officers’ Superannuation Committee) stated that they had not received thatform, and therefore refused to pay her the survivor’s pension.

After applying for a judicial review of this decision, Ms Brewster was allowed an appeal by the Court of Appeal, suggesting that the nomination finding was not unjustified or disproportionate. After the judgement of the High Court, the nomination requirement was removed from schemes by changing the regulations across England, Scotland and Wales. After hearing of these changes, Ms Brewster applied for her appeal to be re-opened by the Court of Appeal, only for it to be refused, leading her to appeal to the Supreme Court.

Following this appeal, the Supreme Court decided to allow Ms Brewster’s appeal and it declared that the requirement that states she and her partner should have made the nomination will not stand. This decision therefore means that Ms Brewster will be entitled to the survivor’s pension under the scheme. It was agreed that the survivor’s pension was considered as a possession and that she was in acomparable situation to a surviving marriage or civil partner, as a surviving unmarried cohabiting partner.

The Chair of Resolution’s Cohabitation Committee, Graeme Fraser, said: ‘[This] Supreme Court decision is highly significant for millions of unmarried couples in the UK in being placed on a fairer footing. It is hoped that this decision will pave the way for further recognition of their family rights and needs not only by the Courts but by Parliament.’

He added: ‘As the fastest growing family type in the UK, it's crucial that these 3.3m cohabiting couples, alongside any children they may have, are provided considerably greater legal protection. Otherwise, as things stand, they are left vulnerable on the death of their partner or on relationship breakdown – hopefully [the] verdict paves the way for this to change.’

If you are currently unmarried and living with your partner and you are concerned about your legal rights then K J Smith Solicitors can help. Our team are experienced in drawing up cohabitation agreements which are designed to help protect you and your family should the worst happen.

For more information or to discuss your circumstances with a member of our team, please contact
K J Smith Solicitors today on 01491 630000 (Henley on Thames),020 7070 0330 (London), 0118 418 1000 (Reading),01753 325000 (Windsor), 01256 584000 (Basingstoke) 01483 370100 (Guildford) or 01494 629000 (Beaconsfield).

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