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Cohabitee rights to a survivor's pension and the future of legal funding

A recent Supreme Court hearing was notable for two reasons: it clarified the rights to a survivors' pension of one half of a cohabiting couple, and illustrated the growing use of crowd sourced funding to plug the gap in legal aid.


Denise Brewster recently found herself at the forefront of a legal battle as to whether she should, as an unmarried partner, be entitled to a "survivors pension" following the unexpected death of her long term partner, Lenny McMullan.  

Ms Brewster and her partner had been in a relationship for 15 years, living together for 10 of those years and owning a home together. They got engaged on Christmas Eve in 2009, however Mr McMullan died unexpectedly sometime between Christmas night and the early hours of Boxing Day.

Despite fulfilling all the other criteria that was required to access Mr McMullan's pension, because Mr McMullan had failed to complete a form nominating her as a beneficiary, Ms Brewster was disqualified from receiving the survivor's pension. 

Ms Brewster was faced with a stark choice; to take the argument to court and risk ploughing money into litigation with no guarantee of success, or to walk away from Mr McMullan's pension and see all the money that had been paid into the scheme over a period of 15 years going back into the scheme's system.

Ms Brewster decided to take the matter to court on the basis that unnecessary bureaucratic requirements, such as the need to complete an additional form despite meeting all other criteria (such as being in a long-term relationship), unfairly penalise families of cohabitees, who risk missing out on financial support that an individual would assume they would receive on their death.  

Ms Brewster was successful in The High Court in Northern Ireland, however the Court of Appeal went on to overturn their decision. Ms Brewster was given permission to appeal the case to the Supreme Court, however she was faced with a question many potential litigants find themselves asking; how am I going to afford this? 

Because of the wider importance of the case and the potential for it to have a significant impact upon cohabitees' rights, Miss Brewster was able to find specialist discrimination lawyers who agreed to act for her on a pro bono basis. Ms Brewster however still had to pay the Supreme Court fees of £5,820, in addition to running the risk that, if unsuccessful, she could be liable for her opponent's legal costs. 

Ms Brewster therefore had to work out a way to secure this additional funding. 

Legal funding - what are the options? 

The, by and large, withdrawal of legal aid for family cases has had a significant impact on access to justice. Not everyone has access to funds up front. Some people will be able to secure litigation loans which are becoming increasingly common tools by which a party may secure funding (from a bank or another institution) to help with legal proceedings. Litigation loans are available for most types of legal work and are not limited to family proceedings. 

Whilst litigation loans will be available to individuals who have a clear route to repayment (say by sale of a property), if there is no clear route to repayment, it is unlikely that an individual would qualify.  

Since 1 April 2013, the courts have had the power to make a legal services order which compels one spouse to make provision for the other spouses' legal costs within divorce financial proceedings. To do so however the court must be satisfied that the applicant:

1. Is not reasonably able to secure a loan to pay for the services; 

2. Is unlikely to be able to obtain the services by granting a charge over any assets recovered in the proceedings; and 

3. Without the amount, would not reasonable be able to obtain appropriate legal services for the purpose of the proceedings. 

The Applicant will therefore need to ensure that they have explored alternative funding options (such as a litigation loan / bank loan) before applying to the court for an order that their spouse contributes.

As a cohabitee, Ms Brewster would not have easily been able to secure any funds from Mr McMullan's estate and, for the purpose of this article, let's assume Ms Brewster did not want to sell her property or risk having to sell the same, so a litigation loan or bank loan was not considered to be an option for her. 

Funding platforms 

Crowd funding platforms are websites which allow individuals, companies or organisations to pitch an idea seeking investment from often unrelated third parties. By making financial contributions towards a specific pitch, in return you can expect to receive anything from a share in a start-up business, to a non-financial reward such as a printed t-shirt. 

In 2015 the Law Gazette considered the viability of third party funding within commercial litigation, whereby an individual could invest in litigation and, if the case is successful and damages are awarded, they will see a return on their investment. 

It was noted however that promoting litigation as a form of investment may seem contrary to the principles of our justice system and, given the healthy state of our third party funding market, it would be hard to see a place for crowd funding in commercial litigation at present. 

However, this has not prevented a barrier to funding platforms being used to fund litigation. 

In an attempt to secure the additional funding required to reach the Supreme Court, Ms Brewster decided to set up a funding page on Crowd Justice, a funding platform, which has been set up to enable individuals, groups and communities to fund legal action. 

What appears to set Crowd Justice apart is that, on the face of it, there is no financial incentive for those individuals who decide to make a financial pledge in support of a specific case. The website confirms that "the law should be available to everyone" and cases are only deemed to be eligible if the case affects a community. It therefore follows that the return to the investors would be to see a case run which otherwise would not have due to financial constraints.  

Thanks to Crowd Justice, Ms Brewster received donations from 122 people and she was able to raise over £4,000 which allowed her to take the matter to the Supreme Court. Her case was heard on 24 November 2016. 

Judgment was given on 8 February 2017 and five Supreme Court Justices unanimously ruled that Ms Brewster should be entitled to receive the pension payments under Mr McMullan's pension. Lord Kerr, giving the Supreme Court's ruling, commented "a requirement that the surviving co-habitee must be nominated by the scheme member justified the limitation of the appellant's Article 14 right is, at least, highly questionable". 

Whilst an important decision in itself and one which has the potential to impact upon the rights of co-habitees moving forward across a broad range of areas and is not necessarily limited to pension rights, this case also brings to light the innovative ways by which people are raising funds to ensure that financial inequality does not preclude them from running a legal case, which otherwise may be successful. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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