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Posted by familylaw on 15th February 2017
Cohabitees pension rights on death

Denise Brewster lived in an unmarried relationship for 10 years with Lenny McMullen until Mr McMullen’s death on Boxing Day 2009, tragically, just 2 days after he had proposed to Miss Brewster.

Mr McMullen was a longstanding member of the Northern Ireland local government pension scheme.

Unfortunately for Ms Brewster, the regulations in force in Northern Ireland at that time required that in order for the cohabitees of a deceased public sector pension scheme member to benefit from “widow’s” benefits on the death of the scheme member it was necessary for the scheme member to complete a nomination of benefits form prior to their death.

The regulations also required that on the death of a member, a surviving (unmarried) partner must be able to show that they had been financially dependent on or financially interdependent with the deceased for a period of two years prior to their death.

The Northern Ireland authorities declined to pay pension benefits to Ms Brewster because they had not received a nomination form from Mr McMullen. Ms Brewster challenged the decision using a process known as Judicial Review. She claimed that the decision represented unlawful discrimination contrary to Article 14 of the European Convention on Human Rights which requires that there be no discrimination in the application of human rights on any ground including marital status.

The court found that she merely had to show that she and Mr McMullen had been in a long-standing financially dependent on interdependent relationship prior to his death. Adding a requirement to complete a nomination form would add nothing useful to this. Consequently, the requirement for a nomination would be dis-applied and Ms Brewster was entitled to claim benefits under the scheme.

The rules in England and Wales and in Scotland had already been changed at the time of this ruling. Similarly, most private sector schemes already cater for such situations. It might be suggested that this case is of marginal significance, relating as it does to the law in Northern Ireland. However, the case serves to highlight the kind of difficulties unmarried partners typically encounter compared to their married counterparts. In that sense it is an important symbolic step forward.

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