The Supreme Court has held that a mother should be entitled to widowed parent’s allowance following the death of her partner, despite the fact that she was not married to him. The ruling has been criticised in some quarters for eroding the difference between marriage and cohabitation.
In the case Siobhan McLaughlin had lived in Northern Ireland with her partner John Adams for 23 years, until he died on 28 January 2014. They did not marry because Mr Adams had promised his first wife that he would never remarry. They had four children, who were aged 19 years, 17 years, 13 years and 11 years when their father died. Mr Adams had made sufficient National Insurance contributions for Ms McLaughlin to be able to claim widowed parent’s allowance had she been married to him.
Ms McLaughlin’s claim for widowed parent’s allowance was refused by the Northern Ireland Department for Communities, on the basis that the allowance could only be claimed by someone who was married to, or the civil partner of, the deceased. She applied for judicial review of that decision, on the ground that the relevant legislation was incompatible with the European Convention on Human Rights (‘ECHR’). That claim succeeded in the High Court in Belfast, but a subsequent government challenge to that ruling was upheld in the Court of Appeal.
Ms McLaughlin appealed to the Supreme Court, which allowed her appeal, by a majority of four to one. The Supreme Court also made a declaration that the legislation precluding any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased was incompatible with the ECHR. It will be for the relevant legislature to decide whether or how the law should be changed.
As indicated, the ruling has been criticised by some for eroding the difference between marriage and cohabitation. However, the majority of the Supreme Court justices found that the purpose of the allowance was not just to assist the survivor but also the children. Giving one of the majority judgments Lady Hale said:
“The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to or in a civil partnership with one another. The purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent. That loss is the same whether or not the parents are married to or in a civil partnership with one another.”
The couple’s children, she said, should not suffer the disadvantage of the allowance not being paid because their parents chose not to marry. And Lord Mance, also with the majority, said:
“Bearing in mind that the main purpose of widowed parent allowance is to secure the continuing well-being of any child of a survivor, there seems in this context to be no tenable distinction, and indeed manifest incongruity in the difference in treatment, between a child of a couple who are married or civil partners and the child of a couple who are not.
“In a large number of cases the effect would also be to discriminate against a child who was illegitimate.”
He went on:
” A policy in favour of marriage or civil partnership may constitute justification for differential treatment, when children are not involved. But it cannot do so in relation to a benefit targeted at the needs and well-being of children.”
Thus the primary basis of the Supreme Court decision is not to put cohabitants on a par with married couples, but rather to ensure that children are not discriminated against simply because their parents chose not to marry. The effect of the decision may have been to remove one small difference between the rights of cohabitants and those of married couples, but it can hardly be said to have eroded the difference between marriage and cohabitation.
You can read the full judgment of the Supreme Court here.
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Image of Lady Hale reproduced from the Supreme Court website, Crown copyright, licensed under the Open Government Licence.