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Cohabitant entitled to UK pension benefits despite being married to another party

Thursday, 18 July, 2019

The surviving cohabitant of a deceased RAF employee has won the right to receive his pension death benefits, although civil service pension scheme rules exclude her as a beneficiary because she is still married to someone else.

Christopher Green died suddenly in May 2011, by which time he had cohabited with Jane Langford for 15 years. He was a member of the UK's Armed Forces Pension Scheme, and Mrs Langford accordingly believed that she would be entitled to survivors' benefits, and a pension, on his death.

However, although the scheme does provide for benefits for surviving unmarried partners of deceased members, it explicitly excludes a surviving partner who is married to another person. Mrs Langford was, in fact, still married to a husband from whom she had been estranged for 17 years, and from whom she neither received nor expected financial support. The Ministry of Defence thus disallowed her claim to pension benefits.

She appealed, alleging that she was being unlawfully discriminated against because of her marital status. Her appeals were rejected by the First-tier Tribunal in February 2014, and by the Upper Tribunal in October 2016.

Now she has appealed again, and the England and Wales Court of Appeal (EWCA) has found in her favour. The key passage in the Armed Forces Pension Scheme rules specifies that the prospective beneficiary and the deceased must have been 'cohabiting as partners in a substantial and exclusive relationship', where 'exclusive' means that neither of the parties to the relationship is married to someone else. This, said McCombe LJ in his judgment, was not necessary to achieve the aims of the scheme.

'I accept that it is a legitimate aim of the scheme to achieve parity of treatment between married and unmarried partners of scheme members', he said. 'But such parity is in reality achieved, not by imposing restrictions based on a partner's marital status, but by requiring the demonstration of a substantial, exclusive and financially dependent relationship in practice.' To impose the rule in Jane Langford's circumstances on the grounds of her marital status was unlawful, he said, because it was not justified or proportionate to its objective.

Accordingly McCombe, supported by the other two EWCA judges Leggatt LJ and Baker LJ, allowed Mrs Langford's appeal (Langford v Secretary of State for Defence, 2019 EWCA Civ 1271).

The EWCA judgment could be important for many other survivors of deceased public sector workers, as many public sector pension schemes contain a similar clause to that in the Armed Forces Pension Scheme.