Maternity Allowance: the Last Bastion of the Marriage-Based Benefits System Under Threat from Article 14

This article explores whether Maternity Allowance (MA) (insofar as it allows spouses and civil partners who are not employed but take part in their spouse’s business but not analogous cohabitees to qualify) is compatible with the European Convention on Human Rights art.14 when read with art.8 and/or art.1 of the First Protocol on the basis that it discriminates against cohabitants and their children. Through a systematic analysis of an art.14 claim, this article examines the methodology developed in McLaughlin’s Application for Judicial Review (Northern Ireland), Re to determine whether it could be relied upon in a claim challenging MA. As will be seen, there are differences between Widowed Parent’s Allowance, the benefit challenged in McLaughlin and MA. However, it will be evidenced that the methodology developed in McLaughlin has the scope to be deployed successfully in the context of MA. Ultimately, this article will conclude that a successful challenge to MA could be the latest example of cohabitants using strategic litigation to potentially further the legal protections available to them.