The Supreme Court has found that a nomination requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulation 2009 (“the Regulation”) which applies to cohabiting partners, but not to married couples or civil partners amounts to unlawful discrimination and should be dis-applied.
The case involved unmarried couple, Mr McMullan and Ms Brewster who had been cohabiting for over 10 years. Mr McMullan was a member of the Local Government Pension Scheme Northern Ireland (“the Scheme”). When he died unexpectedly in December 2009, the Scheme’s administrator refused to award Ms Brewster a survivor’s pension on the basis that it had not received Mr McMullan’s nomination form (in Ms Brewster’s favour). Crucially, the nomination requirement did not apply to married or civil partner survivors. Ms Brewster consequently argued that the application of the nomination requirement amounted to unlawful discrimination and applied for judicial review of the decision.
The Supreme Court found overwhelmingly in Ms Brewster’s favour holding that she was in fact entitled to receive Mr McMullan’s pension. The Court noted that the objective of the Regulation was to remove the difference in treatment between cohabitants and married or civil partners and referred to the nomination requirement as “highly questionable”.
Local government pension schemes in England and Wales and Scotland have already been revised to remove the nomination requirement and most private sector schemes in the UK already offer survivor’s benefits to unmarried partners. Nevertheless, the case indicates a move towards the acceptance of different family structures and the Law Society has described the decision as “a victory for equal treatment before the law for unmarried couples.”
Whilst the decision will be welcomed by many, other areas of law such as the intestacy rules and the inheritance tax provisions remain unchanged and continue to be perceived as considerably less favourable to unmarried couples. The intestacy rules only provide for married couples or civil partners meaning that cohabitees will have no automatic entitlement to their partner’s estate unless they have made a valid Will. Perhaps most significantly, the case involving Mr McMullan and Ms Brewster acts as a stark reminder of the importance of estate planning. Individuals should ensure that they seek advice from a qualified solicitor and have in place a valid Will to ensure that their assets are distributed according to their wishes.
Marilyn Bell, Head of Family Law at SA Law adds ‘Pensions can even be problematic for married couples, and so can what is known as ‘Death in Service’ Often employers pay a sum on death of say 4 x salary. Spouses expect it to come to them, but that may not even be the case. Employers have discretion. If a married couple are in divorce proceedings but haven’t yet got to the stage of sorting out finances, and one dies, the widow or widower can find the death in service is paid to another member of their spouses family.'