Denise Brewster and William McMullan lived together for approximately ten years. The couple got engaged on Christmas Eve in 2009 but two days later, William McMullan died. He worked in public transport and belonged to Northern Ireland's Local Government Pensions Scheme. Under the terms of the scheme Denise Brewster could only receive William McMullan's pension if the cohabitation lasted at least two years and William McMullan had completed a form nominating Denise.
Whilst Denise Brewster believed that William had completed a nomination form the administrators of the scheme confirmed that they did not receive it and they refused to grant Denise a pension. She applied for judicial review of the decision, arguing that the nomination requirement was unfair as the scheme did not require married or civil partner members to complete the form.
The High Court held that the nomination requirement contravened article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits discrimination, read together with article 1 protocol 1, peaceful enjoyment of possessions.
The scheme administrators appealed, arguing that the nomination requirement was reasonable and necessary to establish the existence of a cohabiting relationship equivalent to marriage and to identify the wishes of the scheme member. The Court of Appeal allowed this appeal finding that the nomination requirement was neither unjustified nor disproportionate and overturned the High Court order which awarded Denise the spouse's pension.
Prompted by the decision in the High Court, the equivalent regulations in England and Wales and in Scotland were amended, to remove the nomination requirement in those schemes. Denise became aware of this and applied to the Court of Appeal for her appeal to be re-opened. Her application was refused and she appealed to the Supreme Court.
The Supreme Court unanimously allowed the appeal by Denise Brewster. They declared that the requirement under the terms of the scheme that William McMullan should have made a nomination should be disapplied. Denise was awarded the spouse's pension.
This decision is seen as a big step forward in respect of the rights of cohabitees. Most pension schemes do not allow a cohabitee to benefit whereas there is often no issue if you are married. This decision may prompt pension schemes to amend their policies to ensure that there is some level of protection for a surviving partner.
The law differs greatly between the rights and protection available to those who are married and those who are cohabiting.