A week of changes in family law
  • 9th Feb 2017

This week saw two cases which purport to have changed the face of family law dramatically.

Firstly, on pensions, you cannot have failed to have seen the news reporting on the Supreme Court’s decision in the case of Denise Brewster. A woman in her early 40s, had been denied access to her long term partner’s pension after he died suddenly.

She argued that she was being discriminated against.  She was told she was not entitled to payments from her late partner’s occupational pension scheme because he had failed to sign a form nominating her as his beneficiary in the event of his death.

The same form does not need to be completed for married couples. Theirs was not a short term relationship, the couple having lived together for 10 years in their own home. They got engaged on Christmas Eve in 2009 and tragically Mr McMullan died suddenly over the Christmas period. 

Prior to his death, Mr McMullan had worked for 15 years with Translink, a public transport service in Northern Ireland and was paying into the Northern Ireland local government pension scheme. When Ms Brewster found she was denied access to this pension because the form had not been completed and as she was not married she took her case to Court. Whilst she was successful in the High Court, the Court of Appeal overturned the decision. She then took the case to the Supreme Court where she was successful.

Lord Kerr, one of the Supreme Court Judges, said it was highly “questionable” to require that a surviving cohabitant must be nominated by the scheme member and was a limitation of Ms Brewster’s human rights under Article 14 of the Human Rights Act.

Given the law relating to cohabitees is not well known or legislated for, many argue it needs legislative change. Is this judgement a sign that the Supreme Court is backing a move to better recognition of cohabitees’ rights? This is certainly something that we family lawyers have been campaigning for over many years.

In a second case that made the popular press this week, a decision was made that seems at odds with the stricter approach to spousal maintenance payments that we have seen in the Courts over the past years. Former estate agent, Maria Mills, aged 51 had settled her divorce case back in 2002 with her then husband, Graham Mills, after a 13 year marriage. She received the bulk of the family capital and monthly maintenance but lost all her capital after a series of risky and unwise investments. Her ex-husband has now been ordered to pay her increased monthly maintenance and to support her for life as she is unable to “meet her basic needs”.

Given the current judicial steer has been towards shorter periods of maintenance and with ex spouses being encouraged to become financially independent as soon as possible, it is difficult perhaps to see how this case fits in. Perhaps the fact that Mrs Mills was perceived by the Judge as unlucky or unwise in investment rather than deliberately financially profligate assisted? Certainly much was made of her poor health which had hindered her ability to work over the past decade.

It remains to be seen whether this decision heralds a return to the days of joint lives maintenance or whether it will be quickly distinguished on its unique facts or of course appealed! 

The husband was represented by Philip Cayford QC who called for changes in the law to legislate on the issue of maintenance to bring the United Kingdom more in line with other countries where there is more certainty on the issue of how long and how much maintenance will be paid upon divorce. The private members bill of Baroness Deech supports such an approach but there is no guarantee it will become law.

If you would like more information on any of the issues arising from this article, please do not hesitate to contact a member of the family team at Whitehead Monckton.