May 5, 2017
The recent landmark Supreme Court ruling which awarded a deceased man’s long-term partner payments from his pension, despite her not being named on an official nomination form as decreed by his pension provider, has re-ignited the debate over rights of unmarried couples against those who are married or in a civil partnership.
While unmarried couples living together is increasingly commonplace, legally it remains the case that there is a fundamental difference between being married and unmarried.
Therefore, it is vital that those who are not married take appropriate steps to protect themselves and their family.
In the case of William McMullan and Denise Brewster, they had lived together for ten years before they became engaged during Christmas 2009 – tragically, Mr McMullan died only two days later. While the couple had lived as ‘common law’ man and wife, Mr McMullan’s pension provider – the Local Government Pension Scheme of Northern Ireland – required unmarried cohabiting partners to be nominated by the scheme member in order to benefit. Nomination is not necessary for those who are married or in a civil partnership.
After a lengthy legal challenge, Ms Brewster was successful in her appeal to the Supreme Court, who ruled the couple’s mutual financial dependence should mean a nomination form would add nothing to her eligibility. Many other pension schemes operate on the same basis, so the wider repercussions of this case are yet to be seen.
But this case serves as another reminder of the need for unmarried couples to ensure they take steps to afford themselves greater protection.
* Have an up-to-date will in place, whether married or not. This is particularly important for cohabiting couples, as if their partner dies without making provision for them through a will, they have no automatic right to any inheritance. Although a claim may be possible under the Inheritance (Provision for Family and Dependents) Act 1975, that could be a costly and lengthy process, at what will already be a difficult time.
* Make clear legal documentation over ownership of property. Often partners do not contribute equally to the purchase price or mortgage repayments, so a declaration of trust should be prepared setting out how proceeds from the sale of the property should be divided up. A cohabitation agreement is also important for unmarried couples in regulating financial and living arrangements and responsibilities.
* Careful tax planning is important. Married couples have much more favourable rights with regard to the nil rate band (NRB) and additional residential nil rate band (RNRB) on their inheritance.
If you are unsure of your rights and entitlements as an unmarried couple, it is important you seek advice to clarify your position.
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