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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
While a request for a divorce may come as a shock, most people come to the realisation that if their spouse considers that the marriage is over then, perhaps after attending marriage counselling, there is no point fighting the inevitable.
There is no question that Mr and Mrs Owens are both unhappy with their current position, and the Court of Appeal judges were equally unhappy with the current legal position. The question is what should be done.
The highly unusual decision in the recent case of Owens v Owens, has served as a reminder of the Respondent's right to defend a Petition for divorce, and the Court's power to reject a Petition based on unreasonable behaviour...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).