Mon 03 Sep 2018

Living together with children? Why you still need to consider a Will

Losing your partner is a shattering blow, whatever the circumstances. As well as being emotionally devastating, it may also have an impact on your family’s finances. In recognition of this, non means-tested state benefits are available to bereaved spouses. Essentially, if your spouse died after 6 April 2017 and had paid enough National Insurance contributions, you can claim Bereavement Support Payment. This consists of an initial lump sum followed by up to 18 monthly payments, and is intended to give you some financial breathing space at a difficult time.

But what if you weren’t married to your partner – as is the case for 3.3 million families in the UK? As Siobhan McLaughlin from Northern Ireland found out, surviving cohabitants aren’t entitled to these benefits. Ms McLaughlin had lived with her partner John for 23 years. When he died in 2014, leaving her the sole carer for their four children, she tried to claim the widows’ benefits then available. These included a long-term monthly payment, the Widowed Parents’ Allowance (WPA), the predecessor of the Bereavement Support Payment. Her claim was refused on the grounds that the legislation required the claimant to have been married to, or the civil partner of, the deceased. Ms McLaughlin challenged this refusal through the courts. Last week the Supreme Court agreed that the law governing WPA (section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992) discriminates on the basis of marital status, which means it is not compatible with the provisions of the European Convention on Human Rights (ECHR).

The Court took the view that the purpose of WPA was to benefit the children of the relationship and reduce the financial impact on them of the death of their parent. From that perspective, therefore, it is irrelevant whether the parents were married or cohabiting. The Court considered it to be legitimate overall for the Government to treat married and unmarried couples differently in certain ways, in order to achieve the policy aim of promoting marriage and civil partnership. However, the outcome of this, in the specific context of WPA, was to treat the children of cohabiting couples less favourably than the children of married couples – a result that was disproportionate to the overall policy aim, and therefore could not be justified.

This decision does not in itself change the law on widows’ benefits, nor will it enable Ms McLaughlin or others like her to be paid WPA from now on. However, it will significantly increase the pressure on the UK Government to reform the bereavement benefits system further in recognition of the rapid increase in the number of cohabiting couples. Child poverty campaigners, widows’ charities, and the English family lawyers’ association Resolution have long campaigned for more financial rights (and accompanying responsibilities) for cohabitants, so it will be interesting to see what transpires from the Supreme Court’s decision.

However, it is also noteworthy that the analysis in this case focused on the children of bereaved parents, not bereaved cohabitants as such. Ms McLoughlin had  also been refused a separate state benefit, one paid out to widows whether or not there are children. She didn’t pursue her appeal on this point, so the Supreme Court did not deal with the issue. While childless widows can also claim Bereavement Support Payment, claims by bereaved cohabitants would also appear to be excluded. It seems unlikely that the reasoning in the McLoughlin case could be used directly to challenge this, given the focus of the Court on cohabitants as co-parents rather than as partners.

So it’s important to remember that while this decision is a positive step for cohabiting couples, there are still important gaps in the legal protection available. Although many people believe that living together in a long-term relationship automatically gives you the same rights as married couples, this is not the case. There is no such thing as ‘common law marriage’ in Scotland. Although the law in Scotland changed in 2006 to confer rights if you separate from your cohabiting partner, or they die before you, these are time-limited and considerably less generous overall than those available to married couples and civil partners. If you are not married and your partner dies without making a Will, you may be unable to claim against the estate as well as being ineligible for state benefits, leaving you with the added pressure of financial worries during the most difficult times of your life. Ultimately, although the Supreme Court’s decision may result in more rights for cohabitants, making a Will is a certain way to make sure that the one certain way family’s finances will be safeguarded after death.

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