The Supreme Court has recently handed down its judgment in the case of Re McLaughlin’s Application for Judicial Review.
The appellant, Siobhan McLaughlin, had lived with her partner John Adams for the best part of 23 years, until he sadly died in January 2014. They had never married, and had 4 children together, aged 19, 17, 13 and 11. On Mr Adams’ death, the Northern Ireland Department for Work and Pensions refused Ms McLaughlin’s claim for widowed parent’s allowance. If they had been married, she would have been entitled to a bereavement payment and a widowed parent’s allowance.
Resolution have long been campaigning for the law on cohabitation to be reformed. Ms McLaughlin’s case further highlights how inadequate the law is in protecting cohabitees, and the difference in treatment between married and unmarried couples. This is all set against a backdrop where cohabiting couples are the fastest growing family type in the UK, rising from 2.7million in 2007 to 3.3million by 2017, an increase of over 22% in just a decade. (To put that in context, the number of married couple families has increased by less than 5% across the same period).
But Ms McLaughlin’s case marks a small victory in the campaign for cohabitation law reform: the Supreme Court, by a majority of 4 judges to 1, held that it was incompatible with Ms McLaughlin’s human rights to refuse her application for widowed parent’s allowance. Unfortunately, such a declaration of incompatibility is not binding on the government, but one hopes that it will signal the strength of feeling amongst the judiciary and society generally about the need for reform in this area. The DWP has responded already to say that it will consider the judgment carefully. Will this case be the catalyst for change we’ve been waiting for?
One hopes that this judgment will also highlight to cohabitees that they do not have the same rights under the law as married couples. Unfortunately, the differences don’t stop at treatment under pensions legislation. Upon separation for instance, a cohabitee does not have any of the same capital and income claims as a spouse. Their rights are decided according to strict property principles that were not necessarily introduced with a family relationship in mind.
There are ways of protecting yourself if you are in a cohabiting relationship, the most comprehensive of which is to enter into a cohabitation agreement. This agreement can set out, amongst other things, how personal and real property should be owned, and how it should be dealt with on separation; as well as maintenance during and after cohabitation and provision for children. It is also sensible, if you co-own property to enter into a declaration of trust, which is a document that confirms the extent of each owner’s interest in the property. It can also include provisions to deal with how the parties will meet expenses and maintenance relating to the property.