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Widow’s allowance no longer exclusively available to married couples

Serena Anand and Megan Bennie

In a landmark victory for those advocating for the rights of unmarried couples, the Supreme Court ruled that denying a widowed parent’s allowance to an unmarried mother and her four children was unlawful.

Siobhan McLaughlin, a 46-year old special needs classroom assistant and mother to four children, aged 15 – 23, had been fighting the government’s decision to withhold her bereavement payments and widowed parent’s allowance following her partner – the father of the children – passing  away in January 2014. As the couple had been neither married nor in a civil partnership, the government argued that she was not entitled to any such support or payments. As Alison Penny, the director of the Childhood Bereavement Network, told the Guardian: “We estimate that every year over 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”.

The Supreme Court, whose decision will affect not only Northern Ireland (where Ms McLaughlin lives and from where her case originated), where Ms. McLaughlin is from, but also the rest of the U.K., comes at a time at which the rights of unmarried couples are being hotly debated. The number of couples cohabiting – living together while not being married or in a civil partnership – is estimated to have more than doubled in the past two decades, and many individuals are under the impression that this confers onto them the same legal rights conferred through marriage or civil union. This is, however, not the case, and the law currently requires a couple to be married or civilly partnered for them to enter into any sort of binding financial or legal consequence.

Nonetheless, as the number of couples choosing to stay unmarried rises, courts have been more and more willing to recognize certain rights of cohabiting couples, especially where they have been together for a significant amount of time and have entered into other significant, binding commitments, such as living together or having children. This comes amid concerns and warnings from those in opposition to recognizing the rights of cohabitants, who fear the courts or law may read more binding obligations into a relationship than a couple wished to enter into.  After all, the option of marriage is now available to all – as civil partnership will be soon – so if couples want to benefit from the rights conferred on married couple, some argue, they ought to marry or partner one another.

How the debate on cohabiting couples’ rights continues to play out will remain to be seen, and proponents of recognizing these rights, such as Lady Hale, President of the Supreme Court, for instance, have suggested multi-factorial tests for courts to follow, elevating matters somewhat from the current binary tests that are generally applied. In the case at hand, it seems clear that both the UK Supreme Court and Ms. McLaughlin always saw the crux of the case to revolve around her children and their rights, with the key point not necessarily being the couple’s status as unmarried. This means that cohabiting couples do not automatically acquire the rights of married people but it does substantially muddy the waters.

Responding to the Supreme Court’s decision, and in light of the speed at which cohabitation is growing and becoming increasingly popular, the Department for Work and Pensions has said it will consider the court’s ruling carefully. As of right now, the Supreme Court decision has no impact on current eligibility rules for receiving bereavement benefits, which are only available to married couples and those in a civil partnership. It remains to be seen what the DWP will do in response to the ruling but as calls for further formal recognition of long-term cohabiting status continue to grow, it certainly won’t be long before the government is forced to take stock of the position of cohabiting couples within the law.

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