Should cohabitees receive bereavement damages

Should cohabitees receive bereavement damages

This was a question recently faced by the Court of Appeal after Ms Jakki Smith took the Secretary of State for Justice to Court for breaching her human rights.

Who can claim bereavement damages?

The Fatal Accidents Act 1976 gives rise to the right to claim bereavement damages. The Act allows the wife, husband or civil partner of the deceased to claim damages for their bereavement. Payment is also made to the parents of the deceased where the deceased was a minor. The current payment for bereavement damages is £12,980. At the time that Ms Smith’s partner, John Bulloch, died it was £11,800 and this was the amount she was seeking.

Does a cohabitee get anything?

Unlike the payment for bereavement damages, which a cohabitee is not entitled to claim under the Act, a cohabitee can claim for a financial dependency on the deceased. This claim is possible where the deceased and his partner have been cohabiting for at least 2 years before the death and have been cohabiting as husband and wife.

What was Ms Smith’s case?

Ms Smith argued that by excluding her from those people entitled to claim bereavement damages the Government was breaching her Human Rights. The Court of Appeal agreed with Ms Smith and found that section 1A of the Fatal Accidents Act 1976 was incompatible with Article 14 in conjunction with Article 8 of the European Convention on Human Rights.

Unfortunately, although Ms Smith’s case will set a precedent for other unmarried cohabiting partners to seek bereavement damages, she will not benefit from the decision. This is because although the Secretary of State was acting in a way which was incompatible with Ms Smith’s convention rights, they could not have acted differently due to the provision of the Fatal Accidents Act which does not allow cohabitees to claim bereavement damages.  

How does this affect mesothelioma and asbestos claims?

In giving his judgment Sir Terence Etherton MR commented on the declining “popularity of the institution of marriage and the increase in the number of cohabiting couples”. According to the Office of National Statistics in a report on “Families and Households” in 2015, “cohabiting couples continues to be the fastest growing family type in the UK, reaching 3.2 million cohabiting families”.

This decision can be used as a precedent to persuade defendants that bereavement damages should be paid to cohabitees in line with financial dependency claims under the Fatal Accidents Act 1976. 

Bereavement damages frequently form a part of mesothelioma and asbestos claims and therefore this is a decision which will benefit a number of our clients. However, the Fatal Accidents Act 1976 has not yet changed to allow a statutory entitlement to bereavement damages for cohabitees and we look forward to seeing a change to the Fatal Accidents Act 1976 in the near future.
 

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