Supreme Court landmark win to change discrimination against marital status.

Today saw the landmark victory for Denise Brewster who won her Supreme Court appeal for judicial review of the rules which govern public sector pensions for unmarried couples.

Denise Brewster was in a cohabiting relationship with her long term partner Lenny McMullan who died suddenly on Christmas day in 2009, two days after they were engaged to be married.  They had been in a cohabiting relationship for over 10 years and owned property together.  They had had a conversation whilst discussing their wedding about what would happen if one of them were to die. They had assumed that their pensions were protected and would be awarded to their surviving partner; but they were wrong.

At the time of his passing, Lenny had worked for the Northern Ireland public transport service, Translink, for 15 years, paying into an occupational pension scheme administered by the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC).

If they had been married Denise would have automatically be entitled to the pension as his widow.

Instead, co-habiting partners were only eligible for survivor’s allowances if they were nominated on a form. This form had not been completed, although Ms Brewster thought it had.

In this case, the form has been condemned as “unlawful discrimination” by the Supreme Court because you do not have to complete it if you are married.

Denise was fighting for a future pension and successfully argued in court that this system discriminated against her marital status.  Her original case was granted by the lower level courts in Northern Ireland but overturned by the Court of Appeal.  Today, the Supreme Court has overturned the Court of Appeal’s decision. Denise has now won her eight year legal battle to be recognised as Lenny’s surviving partner and to be entitled to his public sector pension.

Five Supreme Court justices unanimously ruled she is entitled to receive payments under the pension scheme, declaring the nomination form “unlawful discrimination”.

What is the wider implication?

In the UK there are over 12 million public sector pension schemes.  1 in 6 families consist of cohabiting partners and 1 in 3 children are born to cohabiting partners.  These statistics can no longer be ignored.

This Supreme Court decision today has been watched carefully by pension providers as it will undoubtedly have an impact on all public sector pensions. Public sector pensions should now follow private sector pensions which already allow for unmarried surviving cohabitants to benefit from pension funds.  This means that pension funds for nurses, teachers, civil servants and police, and many others will follow suit.

Other public sector schemes could change their rules so unmarried couples automatically benefit from survivor’s pensions without being opted in. They would still have to prove that, as a couple, they had been together for two years and were financially interdependent – for example, having a joint bank account.  But this is a start.

This case is yet another example of why the laws for cohabitants need reform.  Family law that fails to recognise the rights of cohabiting couples in the same way as those of married couples is out of date.  Parliament needs to now seriously consider the rights of unmarried couples and what protective measures need to be put in place; these rights have been recognised by the judiciary and it is time for law makers to follow.