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Changes to Law around Bereavement Damages for Cohabitants

04 June 2019

In November 2017, the Court of Appeal handed down a landmark ruling stating that cohabiting partners should be entitled to claim bereavement damages. This is a fixed payment that is currently paid only to the husband, wife or civil partner of someone who has died as a result of the wrongful actions or omissions of another person.

In the Court ruling, this law was found to be discriminatory and therefore in breach of the Human Rights Act. The government has now published a draft of their proposed Remedial Order to the Fatal Accidents Act, which will entitle cohabiting partners to claim bereavement damages.

The Court of Appeal Ruling on Bereavement Damages

In November 2017, the Court of Appeal ruled in favour of Jacqueline Smith, who brought a case following the loss of her partner, John Bulloch, in 2011. Mr Bulloch died as a result of medical negligence, following a hospital procedure which led him to contract an infection. The couple were not married but had been living together in a committed relationship for over 10 years.

Under current law, Ms Smith had been told that she would not be entitled to claim bereavement damages because she and Mr Bulloch were not married. She began a legal battle, claiming unlawful discrimination on the basis of her marital status. Her case was initially dismissed by the High Court in September 2016, but she was granted permission to appeal and this led to the landmark ruling that has triggered this change to the law.

What Do the Reforms Say?

Since the ruling, details have been awaited of how the government proposes to bring the Fatal Accidents law in line with the Human Rights Act. The draft proposal has now been published.

In short, the reforms will mean that anyone who was cohabiting with the deceased person for at least two years leading up to the date of death will become eligible to claim bereavement damages. This will only come into effect from the date that the statute is formally amended, and will not be applied to historic cases retrospectively. This date is yet to be confirmed.

The draft reform also makes allowances for situations where the deceased has separated from their spouse and is living with their new partner, but they haven't yet divorced. In these circumstances, if the new partner and the spouse both have an entitlement to claim bereavement damages, then this will be divided equally between them.

More Protection for Cohabiting Parents

There are currently around 3.3 million cohabiting couples in the UK, and 1.2 million of these couples have children together. What's more is that this number is on the rise, with cohabitation now the fastest growing family type in the UK.

This reform to the Fatal Accidents Act indicates that the current lack of legal rights for cohabiting couples may be climbing higher on the government's agenda. Many cohabitants mistakenly believe that they are protected by something called Common Law Marriage, but the truth is that there is no such thing as Common Law Marriage in England and Wales. This means that cohabitants have little to no legal protection in the event of a separation or one partner's death.

If you're unsure of your legal rights as a cohabitee and you want to take steps to protect yourself and your partner, a member of our Family Law team can explain what options you have.

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