Landmark court case could help tens of thousands of cohabiting parents

An unmarried woman of four children who was refused widowed parent's allowance after her partner of 23 years died, has won a court battle that could lead to a change in the law for cohabiting couples.

The Supreme Court ruled that the government's refusal to pay Siobhan McLaughlin the £117 a week allowance because she was not married or in a civil partnership was not only unfair on her family but unlawful too.

There is now growing pressure on the government to change the law with massive implications for the 3.3 million cohabiting couples in the UK, around 1.2 million of them with children.

Background

Siobhan McLaughlin's partner, John Adams, died from cancer in 2014. The couple, who lived in Northern Ireland, had four children: Rebecca, 15, Billy, 16, Lisa, 21, and Stuart, 23.

Siobhan applied for widowed parent's allowance but was refused the benefit because she wasn't married or in a civil partnership.

Under current law, to be eligible for widowed parent's allowance (which was replaced by bereavement support payment for people whose husband or wife died on or after 6 April 2017) strict criteria must be met:

• You must be eligible for child benefit;
• The parent who died must have made sufficient National Insurance contributions in their lifetime;
• You must have been married or in a civil partnership.

After being forced to take on two jobs to support her family, she decided to challenge the rule that parents must be married to be entitled to the payment on the grounds that it discriminated against the children of cohabiting parents.

Breach of human rights

Siobhan won her original case but it was overturned by the Court of Appeal. She then took her case to the Supreme Court which ruled, by a majority of four justices to one, that the decision to deny her the benefit was both illegal and incompatible with human rights law.

Lady Hale, delivering the decision, said: "It is difficult indeed to see the justification for denying people and their children benefits, or paying them at a lower rate of benefit, simply because the adults are not married to one another. Their needs, and more importantly, their children's needs, are the same.

"…Is it a proportionate means of achieving the legitimate aim of privileging marriage to deny Ms McLaughlin and the children the benefit of Mr Adams' contributions because they were not married to one another? In my view, the answer is manifestly 'no', at least on the facts of this case."

After the ruling, Siobhan said she had been on an emotional roller coaster. "For me, this case was always about the rights of bereaved children. I am so delighted that the Supreme Court shared our view that the law as it stands has discriminated against my children."

What now?

The Supreme Court cannot actually change the law but the ruling puts pressure on the government to ensure its legislation complies with human rights law and alter the rules so that unmarried couples and their children are not denied support if one of them dies simply because of their marital status.

This could potentially benefit tens of thousands of families.

Alison Penny, Director of the Childhood Bereavement Network, said: "We estimate that every year more than 2,000 families like Siobhan's face the double hit of one parent dying and the other parent realising that they and the children are not eligible for bereavement benefits.

"Widowed parent's allowance was replaced in April 2017 with bereavement support payment but cohabiting parents are still ineligible for this new benefit.

"Each day that parliament delays, another five grieving parents and their children will fall foul of this injustice."

Lack of protection for cohabiting couples

The reason Siobhan had to battle all the way to the Supreme Court illustrates once again just how under-protected cohabiting couples are by family law in England and Wales.

Statutory rights have already been extended to cohabiting couples in Scotland and in 2007, the Law Commission recommended reforms that would legally recognise cohabitees' relationship status in England and Wales but there has been little progress.

It remains the fact that unmarried couples are treated very differently in law from married couples but there are sensible steps cohabiting couples can take to protect themselves legally and financially including taking out a cohabitation agreement, setting up a declaration of trust and making and regularly reviewing Wills.

For more information about this are of the law, please contact Wards Solicitors' specialist cohabitation team.