Another step towards reform of cohabitation law

The urgent need to reform our laws on the rights of cohabitants when their partner dies or their relationship breaks down has been given further support today [30 August]  by the UK Supreme Court. 

The court ruled that it was incompatible with the European Convention on Human Rights (“ECHR”)  to deny Siobhan McLaughlin from Northern Ireland her entitlement to a widowed parent’s allowance simply because she had been living with her partner before his death rather than being married to him.

Ms McLaughlin and her partner John lived together for 23 years before his death in January 2014. They have four children who were aged 19, 17, 13 and 11 when he died. Had they been married she would have been entitled to both a bereavement payment and a widowed parent’s allowance. Her appeal to the Supreme Court ended up being in relation to the allowance only. She was a working mother and this non means-tested benefit would have been a real help financially for the family. She argued that the requirement in the legislation that she had to be married to qualify penalised her children.  

Four of the five Supreme Court justices agreed. A finding of incompatibility is not binding on the government although the DWP has responded to the judgment by saying it would consider it carefully. Unfortunately for Ms McLaughlin and everyone else in her position, unless and until the law is actually changed the benefit will remain restricted to those who are married. The specific allowance dealt with in this case has also changed and the Supreme Court noted that the new allowance, which is a single “bereavement report payment” but is also available only to the married survivor, may not be incompatible with the ECHR, although equally if challenged it may be found to be.

The real importance of this decision is that it further highlights the obvious unfairness of the current law relating to cohabitants.  Cohabitation is the fastest growing family type more than doubling from 1.5m to 3.3m between 1996 and 2016, with millions of children growing up in these families. Our survey in 2017 showed, however, that more than a third of cohabitants mistakenly believed that they had the same rights as married couples or didn’t know the position. The reality is that just by living with someone you get no automatic rights to inherit if your partner dies or to financial claims if you separate. 

Hopefully cases like Siobhan’s McLaughlin’s will at least help people to understand that they don’t have these rights, and our website gives a wealth of information and practical advice on how to ensure you’re protected. But we still urgently need reform. Scotland changed its laws a long time ago and, as Lady Hale in the Supreme Court explained, most other European countries make provision for bereavement payments irrespective of whether the couple is married. We’re out of step here and it’s high time something was done about it. Until that happens hundreds of thousands of families remain vulnerable.  

Nigel Shepherd - Head of Family Law, Mills & Reeve

For more information contact one of our team or call us on 0344 326 0450

Kris Arpon