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Supreme Court decision brings rights for cohabitees a step closer

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Good family lawyers have been increasingly vocal about the need to formalise rights for cohabitees. This is the fastest growing family type in the UK and yet those who choose to remain unmarried or civil partnered, preferring to cohabit are not formally recognised in UK law. The tide appears to be turning however. London Family Solicitors have been campaigning alongside the family law group Resolution, for the recognition of rights for cohabitees for some time now. More recently, the UK courts have delivered a series of judgments eroding the stance of the UK government and offering hope for cohabitees that their relationships will be recognised in law.

In the most recent decision to address the issue of discrimination against cohabitees, welcomed by top family solicitors in London, the Supreme Court looked at the payment of Widowed Parent’s Allowance in Northern Ireland, and found that refusing to pay if the parents had not been married was incompatible with the European Convention on Human Rights.

Widowed Parents Allowance and the application for judicial review

The application for judicial review brought by Siobhan McLoughlin has been followed closely by good Family Solicitors. The application concerned the payment – or rather, the non-payment - of Widowed Parents Allowance on the death of her partner of 23 years, John Adams. The couple had 4 children, aged between 11 and 19 when their father died.

Widowed Parents Allowance is a contributory, non-means-tested benefit security benefit payable to men and women with dependent children, who were widowed before March 2017. When Mr Adams died, he had made enough contributions for his partner to be able to claim Widowed Parents Allowance. However, as the couple had not been married, the claim was refused by the Northern Ireland Department for Communities. S.39A Social Security Contributions and Benefits (Northern Ireland) Act 1992 ('s 39A') only allows the widowed parent to claim the allowance if he or she had been married to or been the civil partner of the deceased.

Ms McLaughlin brought an application for judicial review based on the argument that s.39A was incompatible with the Article 14 of the European Convention on Human Rights (ECHR) which protects against discrimination. Although the high court judge upheld the application and issued a declaration that s.39A was incompatible with Article 14, the Court of Appeal did not agree. Ms McLaughlin appealed to the Supreme Court and the majority agreed with her and the high court judge that the law was indeed incompatible with the ECHR.

Interpreting the purpose of Widowed Parents Allowance

The Supreme Court identified the purpose of this benefit as being to give financial support to children who have lost a parent. In other member states, equivalent benefits are paid direct to the children concerned. The responsibility of the UK to protect the rights of children informs and strengthens this interpretation of Article 14 in this situation, and while it would not always amount to unjustified discrimination, there would be a ‘legally significant’ number of cases where the blanket exclusion of unmarried/non-civil partnered couples would be discriminatory.

The real impact of the Supreme Court decision on rights for cohabitees

Widowed Parents Allowance is no longer in existence – replaced as it has been by Bereavement Support Allowance. However, this is still only available to couples who were married or in a civil partnership. The same potentially discriminatory exclusion of couples who live together with no formal status continues to apply, and the Childhood Bereavement Network estimates that some 2,000 families a year are affected. However, until the UK Government legislates to rectify this situation, nothing may be done unless another family brings a test case in respect of the new benefit.

The latest in a line of decisions in support of cohabitees

Although many people continue to believe in the myth of a ‘common law marriage’ the reality is that couples who choose to live together without formalising their relationship have no rights. Unless they take great care to ensure that wills are up to date, that nomination forms are completed, and that every aspect of their financial affairs are dealt with appropriately, perhaps with a cohabitation agreement, a surviving partner can find him or herself in serious financial difficulty on the death of the other partner. At a time of huge emotional turmoil and grief, he or she can also face a huge shift in circumstances. This can be even more worrying when children are involved.

The courts have been increasingly vocal in their support of rights for cohabitees: Ms McLaughlin’s case is just the latest in a number of decisions declaring the lack of rights for cohabitees as being discriminatory and incompatible with the ECHR. The Supreme Court has also recently ruled that heterosexual couples should be able to enter into a civil partnership, as well as same sex couples (who have the option of civil partnership or marriage open to them).

The judicial wind is certainly blowing in favour of the rights of cohabiting couples – we will have to see if the UK Government addresses the issue and brings an end to this ongoing discrimination.

OTS Solicitors are London Family Solicitors and Resolution members, committed to fighting for the best outcomes for our clients. To discuss your situation, whether you need a cohabitation agreement drawn up, or you are dealing with the death of your partner and struggling to understand what your position is, call us on 0203 959 9123 to speak to one of our best Family Solicitors.

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