LIFE BITE: Cohabiting partners in NI are not entitled to spousal bereavement benefits

apple-150579_1280The NI Court of Appeal has overturned a ruling made by the High Court that the Department for Social Development (DSD) had acted unlawfully when it refused to pay bereavement benefits to a mother on the ground that she was not married to her partner at the date of his death.  

Siobhan McLaughlin lived with her partner John Adams for over 23 years until his death on 28th January 2014. Ms McLaughlin and Mr Adams were unmarried and had four children together who were aged 19, 17, 13 and 11 years at the date of his death.

Upon her partner’s death, Ms McLaughlin claimed Bereavement Payment and Widowed Parent’s Allowance, but was refused both benefits by the DSD because she was neither married to nor a civil partner of Mr Adams at the date of his death.

Ms McLaughlin issued Judicial Review proceedings on the grounds that the DSD unlawfully discriminated against her on the basis of marital status and this was contrary to the Human Rights Act 1998. She also claimed that the DSD decision had failed to have regard for her private or family life.

The High Court in its judgment ruled that the refusal to pay Ms McLaughlin Widowed Parent’s Allowance was a violation of the European Convention of Human Rights as the decision discriminated against her on the grounds of marital status. The Judge ruled that refusal of the Widowed Parent’s Allowance was not justified because the responsibilities for the children are the same irrespective of marriage, civil partnership or cohabitation.

The DSD appealed this decision to the NI Court of Appeal.  The Court of Appeal then considered extensive domestic and European case-law and decided that the State had “adopted a position on marital status and bereavement benefits that the courts have endorsed and Parliament has reaffirmed” and it was “not for the courts to determine the policy in this area”.

The Court of Appeal was satisfied that the relationship of an unmarried cohabitee was not equivalent with that of a spouse or civil partner in the context of a Widowed Parent’s Allowance and that there was no violation of Human Rights.   Accordingly, the Court of Appeal allowed the DSD’s appeal, and Ms McLaughlin’s application for Judicial Review was dismissed.

The case is currently being appealed to the Supreme Court by Ms McLaughlin with a hearing date scheduled for April 2018.

For more information on some of the legal differences between being married/in a civil partnership and cohabiting, check out our article ‘Cohabiting With Your Partner
Feel free to contact us by email if you have any questions regarding cohabitation rights.

Cohabiting With Your Partner

cohabiting.jpegIn recent years, it has become increasingly common for people to choose to live together rather than to get married or enter a civil partnership.

Living with a partner to whom you are not married or in a civil partnership with is often termed as ‘cohabitation’. 

In the UK, the cohabiting couple family continues to be the fastest growing family type in the UK, reaching 3.3 million cohabiting couple families in 2018. Cohabiting couple families include both opposite sex and same sex cohabiting couples.
With cohabitation on the increase, it is important to be aware of all of the legal differences there are between being married/in a civil partnership and living together.

Does cohabitation allow me the same rights as marriage/civil partnership?

Generally speaking, you will have fewer rights if you are living together than if you are married or in a civil partnership.   Many people wrongly believe that with the passage of time, cohabiting couples enjoy the same rights as married couples.  There is an illusion that living together for a number of years earns a couple the titles of ‘common law husband and wife’ which gives them the same legal rights as married couples or those in civil partnerships, although this is not legally the case.  This misconception can unfortunately lead to a cohabiting couple being left in a vulnerable position should the relationship break down.

Cohabitation and Property

Living with someone will not automatically give you rights to the home you share with them.

For example, if you cohabit with your partner in a property which is in their sole name and your relationship breaks down, the Court will have no power to alter the property rights, regardless of whether you and your partner have children together or have both been contributing to the mortgage and other outgoings.  It may be that a proprietary interest can be argued in your favour; however the rights and remedies that you have are drastically reduced in comparison to those available to persons who are married or in a civil partnership.

Similarly, if you and your partner cohabit in a property that is owned jointly and the relationship later breaks down, the general principle is ‘each keeps their own’. You will both be equally liable for any mortgage debt, regardless of whether you have had to leave the home or not.

If you and your partner are living together in a rented property, only the person named in the tenancy agreement generally has the right to live there and this person solely holds the responsibility for paying the rent. If you are not named on the tenancy agreement, the named tenant can ask you to move out at any time (after giving reasonable notice) and you have no automatic right to stay if the named tenant decides to leave.

Cohabitation and Inheritance

It is also worth noting that if your partner dies, cohabiting does not automatically entitle you to inherit in the absence of a Will, regardless of how many years you have been living together.   If your partner has made a Will and named you as a beneficiary, any assets you receive may be subject to inheritance tax as there is no exemption for unmarried couples.

If your partner has not made a Will or has not named you in their Will, as an unmarried partner you may be able to make a financial claim on their Estate. However, making such a claim can be complex and can involve costly legal proceedings.

I am living with my partner but we are not married. How can I best protect my interests?

There are safeguards that can be put in place for cohabiting couples.  You can enter into a Cohabitation Agreement which details what you agree should happen in the event of any future separation.  Such an agreement will be legally binding if made under the right conditions.   Both you and your partner making Wills will also protect your interests in any inheritance you may have in the future.

It is therefore wise to seek professional legal advice whether you are entering into a cohabitation relationship or indeed if the relationship has ended and there are issues to be resolved.

If you would like any further information on cohabitation rights, please contact us here of leave your comments below.