Unmarried Woman Wins Pension Battle in Landmark Ruling

An unmarried woman who was refused payments from her former partner’s pension has won her battle to extend benefits automatically to those who are unmarried. The case could have implications for all public sector pension schemes.

Denise Brewster from Coleraine, Northern Ireland, argued that she was the victim of “serious discrimination.”

She initially won her case in the High Court in Northern Ireland, where a judge said that it was “irrational and disproportionate to impose a disqualifying hurdle of this kind.” However, the decision was overturned in the Court of Appeal in Northern Ireland before the case went to the UK’s highest court for a final decision. The Supreme Court ruled in her favour – a decision which is likely to improve the pension rights of unmarried couples in the public sector.

In a unanimous decision, the five Supreme Court justices ruled the pension scheme had unlawfully discriminated against her on grounds of marital status and was in breach of the Human Rights Act.

Requirement to nominate was in effect discriminatory, said lawyers

Ms Brewster had been living with Lenny McMullan for 10 years and the couple owned their home. They were engaged on Christmas Eve 2009 but Mr McMullan died suddenly in the early hours of Boxing Day.

Mr McMullan had worked for 15 years for Translink, which runs Northern Ireland’s public transport services. He had been paying into an occupational pension scheme administered by the Northern Ireland Local Government Officers’ Superannuation Committee. The scheme required members, using a designated form, to nominate cohabiting partners before they would become eligible for survivor’s pensions.

Such a nomination had not been made for Ms Brewster and she was denied the pension. Her lawyers argued that the requirement of the nomination form was disproportionate and in effect discriminatory.

In its judgment, the Supreme Court said the requirement for a nomination form should be removed from the pension scheme

Thrust into hardship on losing a partner

Ms Brewster said that losing a loved one was “horrendous” and that others, particularly cohabiting parents, were being “thrust into hardship” as a result of losing a partner, their income or their pension.

“Lenny would have been happy that so many other people are going to benefit as a result of this [decision],” she said.

If the pair had been married, Ms Brewster would have automatically shared the pension that had been built up by Mr McMullan. Instead, cohabiting partners were only eligible for survivor’s allowances in the same way if she had been nominated on a form. However, this form had not been completed, although Ms Brewster thought it had been.

Ruling could improve the rights of other unmarried couples

The Supreme Court’s decision could have implications for the rights of cohabiting couples working in the public sector.

Health workers, civil servants, teachers, police and fire officers all have to fill in a nomination form if they want their partners to share in their pension if they die.

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

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, by having a joint bank account.

It is still unclear whether the Supreme Court’s ruling would lead to any retrospective change in the rules. This is likely to be dependent on another court hearing.

Other pension schemes may argue that discrimination is justified in some circumstances, and some legal experts have suggested the impact of the ruling could therefore be limited.

Amanda Melton, IBB’s divorce law expert, comments

“The recent reported case on cohabitant’s rights to claim against their late partner’s pension provision seems to suggest that the survivor of the pension holder has been given a right to which she should be entitled as of right. In the way that the survivor of a married couple is entitled to a benefit under the pension so it seems a cohabitee is now entitled. Whereas previously there was a requirement for a nomination to be made by the pension holder prior to death, now it seems that nomination form is no longer required to allow the cohabiting partner to claim the benefit. That does however beg the question about whether or not the deceased partner actually wanted his surviving partner to benefit? What about other pensions falling outside the public sector? At the moment this only applies to public sector pensions but surviving cohabitees where no provision has been made by nomination can still make an application under the Inheritance (Provision for Family and Dependants) Act 1975 seeking provision from the deceased partner’s estate to meet their needs. “

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