Cohabitee triumphs in bereavement damages test case
Posted on December 12, 2017
In a landmark decision that will be greeted with joy by Britain’s 3.2 million cohabiting couples, the Court of Appeal has ruled that the exclusion of unmarried partners from entitlement to damages for bereavement is incompatible with their human rights.
The Fatal Accidents Act 1976 enables a lump sum – currently £12,980 – to be paid in bereavement damages to spouses or civil partners of deceased negligence victims. However, such awards are not available to cohabitees and this has long been the subject of widespread criticism.
The issue arose in the case of a woman whose partner of 16 years died from an infection as a result of admitted clinical negligence. The NHS had settled her compensation claim on the basis that they had lived together for more than two years and that she was dependent on him. However, bereavement damages were not available to her as she and the deceased had never married.
It was accepted that the couple’s relationship was equal in every respect to marriage in terms of love, loyalty and commitment. In those circumstances, the woman’s lawyers launched proceedings against the Secretary of State for Justice, arguing that the unavailability of bereavement damages in her case violated her human rights.
Her claim was rejected by a judge but, in upholding her challenge to that ruling, the Court found that the exclusion of cohabitees from entitlement to bereavement damages falls within the ambit of Article 8 of the European Convention on Human Rights, which enshrines everyone’s right to respect for family life. The distinction made between cohabitees and married couples, or those in civil partnerships, amounted to discrimination banned by Article 14 of the Convention.
The Court noted findings by the Office of National Statistics that cohabiting couples continue to be the fastest growing family type in the UK, amounting to 17 per cent of all families by 2015. The figures indicated that, for a large proportion of the population, there was no difference in terms of social acceptance between marriage and civil partnership on the one hand, and living together as an unmarried couple on the other. In the circumstances, the appropriate relief was a declaration that the relevant provision of the Act was incompatible with the human rights of cohabitees.
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