March 10th, 2017
Last week the Supreme Court ruled that a woman was entitled to her late partner’s public sector pension, despite them not being married and him not having completed a form nominating her as an eligible survivor.
Ms Brewster had lived with Mr McMullan for ten years before he died in 2009. They were just engaged. Mr McMullan was employed as a civil servant for a public transport service and had paid into the Local Government Pension Scheme for many years. On his death, the pension administrator refused to pay Ms Brewster a survivor's pension because they were unmarried and Mr McMullan had not completed a form naming her as a survivor. Married couples did not have to fill in a nomination form, and had they been married Ms Brewster would automatically have been entitled to share Mr McMullan’s pension.
Unlike married couples, cohabiting partners do not have automatic rights to pensions or other assets upon death or separation. Ms Brewster relied on the European Convention on Human Rights to argue that preventing her access to the survivor's pension was discrimination against her as an unmarried cohabitant, and couldn’t be justified. She succeeded and now benefits as his survivor.
Whilst the decision is undoubtedly a step in the right direction, cohabitants don’t have the same rights as married couples or those in a civil partnership. It may be that some public sector pension schemes change their rules and practices following the judgment to automatically benefit cohabitants, but it is unclear whether that would apply to all cases, or whether the rules will be backdated. While many private sector pensions automatically provide for survivor's benefits to unmarried partners, this is not always the case, so cohabitants must carefully the rules in relation to their own schemes. The fact remains that there is no such thing as a “common law spouse”, so cohabitants cannot assume that the law will provide for them as if they were married.
Annabel Hayward is a Resolution Accredited Specialist in Cohabitation law, and campaigns with Resolution members to bring about a change in the law to protect vulnerable cohabiting couples on separation/death. In her view, the law still has a long way to go to keep with modern lifestyles. Cohabitants should not just assume that the law will be there to protect them. They need to consider making a will to reflect their wishes after death, and cohabitation agreements can be used when you begin to cohabit to protect each party's position on separation. They can also be a good way to flag issues which may arise in the event of the other parties’ death, including the future of the house and pensions. For further information contact Annabel Hayward on 01908 262680 or email email@example.com
Annabel has over eighteen years’ experience in all aspects of family law. She was delighted to join specialist practice Hawkins Family Law in April 2014, and is a Director, having spent the previous years as a Senior Associate at Taylor Vinters in Cambridge and London.
Annabel is collaboratively trained as a family lawyer, she is a family mediator and is an Accredited Specialist in cases involving substantial assets (including pre-nuptial agreements), and those involving cohabitees (unmarried couples). The Legal 500 comments that the team at Hawkins are “exemplary” and describes Annabel as “striking a good balance between empathising and successfully navigating divorce cases” and “a pragmatic lawyer with a cool head” (The Legal 500). Her strong reputation is built around negotiating tailor-made financial settlements, where possible out of court, and at an early juncture.
Alongside client work, Annabel is regional Press Officer for the Milton Keynes’ branch of Resolution (www.resolution.org.uk) and sits on Resolution’s national Cohabitation Working Party which campaigns to secure legal recognition for cohabitants. She is a contributor to the legal and national media on family issues, and lives in Bedford.
Please contact Annabel directly here at Hawkins Family Law on firstname.lastname@example.org
Hawkins Family Law fields 'a very professional team that delivers a high-class service and has strength-in-depth from senior to junior level'. Managing director and team head Jo Hawkins provides 'clear and accurate advice and moral support through often testing times for her clients; she focuses on deriving the best long-term outcome for her client and other parties'. The practice has particular strength financial matters, including divorce and ToLATA proceedings. Other key figures include Loraine Davenport, who has strong collaborative law expertise and handles complex children cases and high-net-worth ancillary relief matters; Annabel Hayward, who focuses on complex financial provision and co-habitation matters; and Stacey St Clair.
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What the team is known for
Boutique family law firm that punches above its weight in terms of high-value and complex matrimonial finance instructions relating to business assets, pensions and substantial property portfolios, including assisting with the handling of assets abroad. Also represents clients in the negotiation of wealth protection agreements and private law childcare arrangements. Fields a team trained in collaborative law and alternative dispute resolution.
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