Common law marriage? Bereavement claims for cohabitees

Cohabiting couples are now the second largest family type in the UK and are the fastest growing type of family, for a huge variety of reasons.  Despite these increasing numbers, there has not been any meaningful reform of the law to provide much needed protection to cohabiting couples upon the death of one of them as a result of negligence.

Many people believe that they are in a ‘common law marriage’ with their partners which gives them the same rights as a married couple.  This is not the case – in fact, common law marriage has not existed for 250 years!

Of course, no amount of money can ever compensate you for the loss of a loved one.  However, the law currently provides a set amount of £12,980, called the bereavement award, which can be claimed under the Fatal Accidents Act by a very narrow group of people.  This award is separate from any other part of a claim such as funeral expenses.

Those who can currently claim under the law are:

• The parents of a person who died under the age of 18, if they were born within a marriage;
• The mother of a person who died under the age of 18, if they were born outside of marriage; or
• The spouse or civil partner of the person who has passed away

Cohabiting couples are not currently included in this list.  If cohabitees have lived with the person who has passed away for two or more years it may be that they have a claim as their dependent.  However, it would not be possible for this statutory award to also be claimed as things currently stand.

A recent case, Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors [2017], highlighted just how unfair the law currently is.  Jacqueline Smith brought a claim following the death of her partner, John Bulloch.  They had lived together for 11 years and had never married.  Mr Bulloch sadly passed away as a result of an infection.  In her claim, Ms Smith argued that the current law denying cohabiting couples the right to a statutory bereavement award was a breach of the European Convention on Human Rights and discriminated against her as an unmarried person.  The Court of Appeal agreed and declared the current law was not compatible with human rights law.  This meant the court recommended that the Government review this point.

Finally, after many years of calls for change, the Government has announced that they will amend the Fatal Accidents Act 1976 to include cohabitees who have lived with the person who has passed away for at least two years immediately before they died in the list of people who can claim a bereavement award on the death of their partner.

This change will bring more fairness to the process of claiming when a loved one has passed away as a result of negligence.  However, cohabitees will still need to prove their entitlement to claim, through evidence such as ownership of any property and sharing of household expenses.  It may be that there is still some argument over which evidence will be satisfactory and the courts may be able to provide more clarity on this as cases go forward.

I would hope that this long overdue change is made soon.  It is clear that the law is not fair in its approach as it currently stands and an ever increasing number of people may be denied compensation that they deserve.