Cohabiting - the law should reflect this ever growing demographic

With cohabiting couples not attracting the same legal rights and protection as married couples, Scott Haslam from Wake Smith Solicitors asks if the law should be brought into the 21st century to reflect this ever growing demographic.

The recent case of NHS worker Jakki Smith who won an appeal after discovering she was not eligible for damages after her partner John Bulloch died in 2011 has brought into the headlines the laws surrounding unmarried couples.

The couple had been together for 16 years when former prison office Mr Bulloch, 66, died following an operation to remove a benign tumour on his foot. An infection had been missed by medical staff and he fell ill while on holiday in Turkey.

The NHS paid compensation for Mr Bulloch’s pre-death pain and suffering but Ms Smith was not entitled to the ‘bereavement award’ as she was not married to her partner.  She asked the Court to declare that the 1976 Fatal Accidents Act, which sets out who is entitled to a bereavement award, is incompatible with the Human Rights Act.

The High Court had previously dismissed her claim, with Mr Justice Edis ruling that there was no incompatibility between the 1976 Fatal Accidents Act and Ms Smith's Convention rights.

Ms Smith successfully appealed under the Human Rights Act, arguing that she was being discriminated against because she was unmarried and was being denied her right to a family life, articles 8 and 14 of the European convention on human rights.

The landmark Court of Appeal ruling could mean that unmarried couples are to have the same rights to bereavement damages as married couples.

The fixed compensation of £12,980 is paid out to a spouse or civil partner if a person dies following negligence, such as in medical cases, industrial incidents or accidents which are down to failings by an organisation or individual.

Ms Smith will not benefit financially from the decision as it is not possible to receive a retrospective payment.

Scott said: “The Government classes you as a couple with regards to other legislation such as Council Tax and Job Seekers Allowance, but not for bereavement damages.

“Attitudes have changed towards cohabiting couples over the last 40 years, society has moved on and the law needs to be changed to reflect that. Cohabiting couple’s relationships are now equal in every respect to a marriage in terms of love, loyalty and commitment.  Unfortunately, the law still lags behind in many areas and does not afford the same protection it does to married couples, including in matters of inheritance and in circumstances of relationship breakdown.

“The case highlights the inequalities created by the Fatal Accidents Act but the Court of Appeal’s ruling does not automatically mean the law will be changed.  Only Parliament has the power to amend the legislation and so this case provides the Government with the opportunity to formally change the law.

"We hope that Parliament will now iron out the incompatibility and bring this legislation into the 21st Century.  It would be great if we could have an open debate about the circumstances in which a financial award should be made in recognition of bereavement."

The Law Commission has previously recommended that cohabiting couples should be allowed to receive bereavement damages, and a draft bill produced by the Government in 2009 never became law.

In Scotland the law already covers cohabiting couples and other immediate family members such as parents and children.

The number of cohabiting couples in the UK has risen to an estimated 3.3 million with cohabiting couples now being the second largest type of household in the UK, according to the Office of National Statistics’ report ‘Families and Households in the UK 2017’.

The number has more than doubled since 1996, when it stood at 1.5 million, and is expected to increase further.

For further information on bereavement damages, or knowing your cohabitation rights and planning accordingly, call Wake Smith Solicitors on 0114 266 6660.

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