Invoking Human Rights to Protect Unmarried Couples

This article explores the methodology developed in Re an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 and other recent cases that have seen cohabitants use the European Convention on Human Rights to gain access to legal protections originally intended exclusively for spouses and civil partners. It will be argued that whilst McLaughlin demonstrates a robust approach to discrimination affecting unmarried couples, the methodology is caveated leading to questions surrounding whether its scope is wide enough to have any substantial benefit in future litigation. This article undertakes a systematic analysis of the stages of an ECHR claim to argue that the developments in these cohabitation cases should be welcomed, and that there is a role for human rights to play to alleviate the discrimination facing cohabitants. However, the continued acceptance of the legitimacy of promoting formalised relationships to justify different treatment alongside a disproportionate weight attached to the presence of children means that the methodology may have limited application.