July 22, 2019

How pension schemes can conflict with human rights law

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Pension schemes and cohabiting partners

In the recent case of Langford v Secretary of State for Defence, Ms Langford successfully appealed against a decision to exclude her from benefitting from the pension scheme of her late partner, due to the fact that she was still married to her estranged husband at the time of her partner’s death.

Ms Langford had been in a relationship with her partner for 15 years and, bar one issue, she met all the requirements to benefit from her partner’s pension scheme, in circumstances where she was in a substantial and exclusive relationship with her partner and she was financially dependent upon him. However, owing to the fact that she was still married (albeit estranged from her husband for some 17 years), she failed the test which required there to be no reason preventing the couple from marrying.

Ms Langford appealed the decision and the Court of Appeal agreed with her position. It was held that the purpose of the scheme was to help provide for the survivors of substantial and exclusive relationships. It was argued that to distinguish between claimants purely upon the basis of whether they were married (rather than upon assessment of the quality of the relationship) was discriminatory.

It was argued that one of the reasons that married partners were excluded was to avoid situations whereby an individual might be able to recover under two pension schemes. However, in circumstances where this was not relevant to the case, the Court held that there was no reasonable foundation to include such a provision and the concerns could be addressed through the need for the relationship to be one of financial interdependency.

This decision followed that of the Supreme Court in Brewster, in which a surviving partner successfully appealed against the decision to preclude her from benefitting from her late partner’s pension scheme, on the basis that she did not comply with the requirement for cohabiting partners to be “nominated”. As with Ms Langford, Ms Brewster met all of the other relationship requirements to benefit from the scheme, but failed due to the absence of her nomination. The Supreme Court held that the inclusion of the nomination requirement, which was not necessary for spouses or civil partners, defeated the aims of the scheme and could not be objectively justified. It was therefore held that the requirement was discriminatory and should be disapplied, meaning Ms Brewster could benefit from the scheme.


When considering the purpose of the pension schemes in these cases, it is good to see that pragmatic decisions are being made which reflect modern family relationships. This is particularly positive with regard to the position of cohabiting couples, who enjoy relatively limited rights under the law. It will be interesting to see whether decisions such as these will be followed in the years to come with greater rights being provided for cohabiting couples where one dies without a will (known as intestacy) – in circumstances where they presently receive no automatic benefit under the current law and are left needing to make a claim on an estate.

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