Law Courts, Cohabitees and Clarity 

Published on 10 February, 2017 | Ellen Walker

Recent decades have seen tremendous upheaval in British family life.

Without doubt, the most significant has been the growth in the number of couples who choose to live together without marrying.

Whilst individuals in such partnership would have been stigmatised by previous generations for whom marriage was the only domestic arrangement which mattered, it’s not the wrongs but the rights of cohabitation which have taken centre stage in recent years.

Over the last 20 years, the number of unmarried couples in England and Wales has more than doubled but there has been no consequent change in the law, either providing a framework by which those whose relationships don’t last the course can untangle their affairs or some recognition for people whose partners die having not tied the knot.

It is rather surprising to find that the myth of the so-called ‘common-law wife’ persists, along with the belief that they are entitled to a share of their ex’s assets or estate.

In reality, such matters are dealt with not under family law but property law (and, in particular, the Trusts of Land and Appointment of Trustees Act 1996 which is known as ToLATA, for short) with claimants needing to demonstrate an interest in the property where the couple had lived.

Clearing away the confusion and providing clarity is the principal reason behind the drafting of a Bill by the Liberal Democrat peer and QC, Lord Marks, (http://services.parliament.uk/bills/2016-17/cohabitationrights.html).

However, as promising as it sounds, it’s moving slowly through the parliamentary machinery and is still some way from making it onto the statute books, if indeed it ever does.

Which is why a Supreme Court ruling in the case of an unmarried lifeguard from Northern Ireland could provide some critical momentum.

Denise Brewster had lived with Lenny McMullan for 10 years, owned their own home and had got engaged only days before he died at Christmas in 2009.

Had they married, Ms Brewster would have been automatically entitled to a survivor’s pension as a result of Mr McMullan’s job with Translink, the company which operates Northern Ireland’s bus and rail network.

Due to their being cohabitees, they needed to both sign a form enabling the payment to be made, something which they hadn’t done prior to his death.

Five Supreme Court judges have now ruled, though, that such a difference amounted to discrimination and have awarded Ms Brewster is entitled to the money (http://www.thisismoney.co.uk/money/pensions/article-4203622/Denise-Brewster-wins-Supreme-Court-ruling-claim-pension.html).

It is, in my opinion, nothing short of a shift in judicial thinking which could have important implications for cohabiting couples, although stopping well short of reinforcing the ‘common-law wife’ myth of old.

What the judges have arguably done is increase pressure on MPs to address the iniquities experienced by individuals like Ms Brewster.

Whether they move quickly to introduce legislation to deal with an area of law which has long been thought unfair remains to be seen.

The shape of whatever law might be created also means that this will not be a straightforward process. After all, should the rights of those living with a partner for a decade, as in the case of Ms Brewster and Mr McMullan, not be different from those who cohabit for a much shorter period of time?

Future developments cannot overshadow the comfort provided by the Supreme Court decision, especially at a time when a Government overhaul of the system of bereavement benefits which is due to take effect in April makes no provision for cohabitees.