Unmarried Couples to Receive Automatic Pension Rights?

Hot off the press is the landmark case of Brewster v McMullan which may have paved the way for unmarried couples to benefit from the pension of their deceased partner.

The case concerned Denise Brewster who had been in a relationship with her partner for 10 years. Upon his death, she was initially refused a pay-out from her late partner’s public sector pension scheme as they were unmarried. In order for her to have received payments, her late partner needed to have signed a form nominating her as a beneficiary, which he had not done.

Had the couple been married, there would have been no need for the form to be signed.

The case went all the way to the Supreme Court where Miss Brewster argued that she had been discriminated against because she was not married. Lord Kerr agreed and ordered that the form nominating Miss Brewster as a beneficiary be “disapplied” stating that “a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellant’s Article 14 right [protection from discrimination], is, at least highly questionable”.

This precedent suggests long-term cohabiting couples may now have an automatic right to their partner’s pension upon death (at least in the case of public sector pensions).

However, the decision raises some interesting issues.  When is a relationship considered to be long term? In this case, the couple had cohabited for 10 years but would a shorter period of time also afford the same rights to unmarried couples? Furthermore, what value will marriage hold in the future? The Court’s have until now treated marriage as a more permanent relationship than cohabitation and the government has afforded financial incentives to married couples in order to promote marriage. However, the reality is that more couples are living together without getting married and the rights traditionally afforded to married couples may, in the future, come to be available to cohabitants as well.

It is important to bear in mind that marriage (devoid of any religious or cultural context) is a legally binding financial contract. There are many reasons why fewer people are choosing to get married nowadays but one reason that is important for many people is that it removes the financial responsibilities and risks that arise from entering into a legally binding contract. However, given that over 15% of all families in the UK are cohabiting, with this figure set to rise in the future, will the law now impose upon couples that choose to remain unmarried, the same financial contract that they may have hoped to avoid?