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The law needs to move with the times for cohabiting couples

Ewan Tant, specialist asbestos lawyer at Leigh Day, welcomes a recent landmark decision by the Court of Appeal that cohabiting couples should have a right to claim bereavement damages, putting them in the same position as spouses and civil partners.

Couple walking in park
Ewan is a specialist asbestos and industrial disease claims lawyer who represents client who have been exposed to asbestos in their workplaces and elsewhere, and who have gone on to develop mesothelioma and lung cancers.
As a specialist asbestos lawyer who has represented many families, including both married and unmarried couples, I consider the Court of Appeal’s decision that cohabiting couples should have a right to claim bereavement damages is a welcome step forward in updating the outdated legislation in this area.

The case was brought by Jacqueline Smith, following the death of her partner, John Bulloch, as a result of clinical negligence. Mr Bulloch fell ill whilst on holiday in Turkey, following a hospital procedure to remove a benign tumour.

Under the Fatal Accidents Act 1976, a fixed sum of £12,980 is paid out in bereavement damages if a person dies as a result of negligence; however, as it stands, this payment can only be made to spouses and civil partners. There is no provision under the act for bereavement damages to be paid to an unmarried cohabiting partner, no matter how long the couple has been together. This meant that Ms Smith, who had lived with Mr Bulloch since March 2000 until his death in October 2011, was not entitled to bereavement damages. 

Ms Smith’s claim had been dismissed by the High Court, but the Court of Appeal allowed Ms Smith to challenge this decision. Ms Smith argued that the Fatal Accidents Act 1976 was in breach of the European Convention on Human Rights.

In a historic decision, the Court of Appeal made a declaration that the Fatal Accidents Act 1976 provision in relation to bereavement damages is incompatible with the European Convention on Human Rights. The Court of Appeal said that the £12,980 award for bereavement damages under the Fatal Accidents Act 1976 should be available to anyone who had been in a cohabiting relationship for at least two years.

Sadly, Ms Smith will not receive any money from the decision, because the decision does not act retrospectively and the Court of Appeal’s declaration does not affect the validity of the Fatal Accidents Act 1976; however, the decision should put further pressure on Parliament to amend the legislation to include cohabiting couples.

It is admirable that Ms Smith brought this case and the only shame of it is that she won’t receive the damages which the court is now saying she should; neither, as it stands, will any other cohabiting couples, until Parliament amends the legislation.

I routinely act for people in fatal claims and a large number of these claims are brought by partners who had cohabited with the deceased, but were not married. There is simply no justification in the 21st Century for treating cohabiting couples differently to married couples and it is high time the law was modernised. 

I would welcome a change that would bring legislation into line with public attitudes towards cohabiting couples. Between 1996 and 2016 the numbers of cohabiting couple families grew from 1.5 million to 3.3 million families*. I sincerely hope that this landmark decision persuades Parliament to amend the current legislation to make bereavement damages available to cohabiting couples.

*from a 2016 ONS report on Families and Households

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