Death Benefits – a positive development on the rights of cohabitees and 'common-law spouses'

Posted by Simon Burge on
In the recent Supreme Court decision in the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48, the UK's highest court took a big step in the right direction to strengthen the rights of cohabitees.

Siobhan McLaughlin appealed the decision of the Department of Work & Pensions that she did not qualify for Widowed Parent's Allowance (WPA) following the death of her partner in 2014 because, despite her having 4 dependent children, she was not married to or the civil partner of the deceased.  The question put to the Supreme Court was whether in claiming WPA, a contributory, non-means-tested benefit, the requirement to have been married to or in a civil partnership with the deceased unjustifiably discriminates against the survivor and/or the children on the basis of their marital or birth status, contrary to article 14 of the European Convention on Human Rights (ECHR) when read with the right to respect for family life or the protection of property rights.

The Supreme Court Justices declared that the requirements of WPA are incompatible with article 14 ECHR, which secures individual's rights and freedoms without discrimination.   The Justices found that WPA exists because of the responsibilities of the deceased and the survivor towards the children, and is designed to lessen the financial loss caused to families with children by the death of a parent.

Simon Burge, Partner in Blake Morgan's Family Team, gives his insight.  “Prior to 6th April 2017, Widowed Parent's Allowance and Bereavement Allowance were only payable to a spouse or civil partner of the person who had died. For deaths occurring after 6th April 2017, a Bereavement Support Payment can be claimed and this can be worth up to £10,000, but it had been thought that the same rules applied – namely that you had to have been married to or in a civil partnership with the person who had died.  This still discriminated against those in committed long-term relationships who for a variety of reasons haven't formally tied the knot – and who may mistakenly believe they acquire the rights of a common-law spouse with time.  

“So for the many other unmarried couples in the UK and their children, this morning’s landmark ruling by Britain’s highest court sets an encouraging precedent.  Now the net has been widened it means that potentially thousands more bereaved people will be able to claim this support, thereby relieving a little of the financial strain that so often comes with the unexpected death of a loved one.

“However, the Supreme Court has justified its decision today by drawing a distinction between widowed parents on the one hand and other bereaved claimants on the other. The logic behind the ruling is that the benefit should be payable in circumstances where there is a dependent child or children and it doesn't – or shouldn't – matter whether the parents were married / in a civil partnership or not. In addition, the decision of the Supreme Court only applies to the old Widowed Parent's Allowance which has now been phased out. It remains to be seen how the ruling will affect the way in which people claiming the new Bereavement Support Payments are treated in future because these payments can be claimed not just by parents but by anyone whose spouse or civil partner paid National Insurance contributions for at least 25 weeks or who died because of an accident at work or a disease caused by work.”

For further information or for help on any other aspects of Family Law, including in disputes over child contact arrangements or issues relating to finances in divorce, please contact Simon Burge or another member of Blake Morgan's Family Team.

Simon's comments on this case were featured in The Times, The Law Society Gazette and Lexis Nexis.

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Simon is a Partner in our Family Law team in our Southampton office. Simon is an experienced family law practitioner specialising in high net value family cases.

Simon Burge
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Photograph of Adam Cooper

Adam is a Solicitor in the Family team in Southampton.

Adam Cooper
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