In these posts we have often spoken of the practical differences of the rights of married partners and those cohabiting without being married. These differences often emerge when a relationship breaks down but the position on death can be equally stark.
As explained above, where the parties are not married, whether or not the surviving partner will be entitled to benefit from a pension will depend on the precise wording of the pension scheme.
Most employment pension schemes do not give any benefit rights to the surviving partner, except possibly for a lump sum, which will be paid at the discretion of the managers of the scheme. Those managers will make their decision taking into account all the relevant factors stated in the scheme rules.
One of the most important of those factors is whether or not the pension holder who has died, has formally elected (invariably in writing) for the surviving partner to benefit from the lump sum payment.
A case from Northern Ireland has made the headlines in recent weeks. It involved a Ms. Denise Brewster who took her case all the way to the Supreme Court in London.
Ms Brewster claimed she had been discriminated against because she was a cohabitant and not a spouse. She applied for a judicial review of the requirement to complete a nomination form, arguing that it breached the European Convention on Human Rights. She was successful in the High Court of Justice in Northern Ireland, where the judge said it was ‘irrational and disproportionate to impose a disqualifying hurdle of this kind.’ However, that decision was overturned on appeal in Northern Ireland. Ms. Brewster then appealed to the Supreme Court in London for a final decision.
The Supreme Court decided that Ms Brewster was entitled to receive a survivor’s pension under the LGPS.
The court said that the requirement to complete a nomination form was unlawful discrimination on the basis of Ms Brewster’s status, because a married member would not have had to submit such a form.
The court considered that the very reason long-term cohabitants were included in the regulations as potential recipients of survivors’ pensions was to give them equal treatment with married couples. While it made sense to require proof of cohabitation, this was required to be provided by the survivor in any event, so requiring the submission of a nomination form did not add anything and could potentially penalise a cohabitant.
The requirement for a nomination form in the LGPS in England and Wales and in Scotland has already been removed under the equivalent regulations.
However, many other public and private sector schemes retain the requirement for a nomination form. Many may now consider amending their rules as a result of the judgment in the Brewster case. If so, the position of unmarried cohabitants would improve and they would become eligible for survivors’ pensions without having been formally nominated by their former partners.
Nevertheless, in order to avoid what might be lengthy negotiations and possible legal action, if there is a requirement to complete a nomination form, the practical approach is to do so: there can then be no argument about what the pension holder intended.