The Fatal Accidents Act 1976 (FAA) currently makes bereavement damages available to a wife, husband or civil partner of the deceased but fails to recognise cohabitees. However, more than three years after Smith v Lancashire Teaching Hospitals NHS FT & Ors , a remedial order is currently going through Parliament to deal with the incompatibility between the FAA and Articles 8 and 14 of the Human Rights Act 1998.
The case was brought by Jacqueline Smith following the death of her partner. She had cohabited with her partner between March 2000 and his death in October 2011. They were never married but it was accepted the relationship was equal in every respect to a marriage in terms of love, loyalty and commitment.
There is no provision under Section 1A(2) of the FAA for unmarried cohabiting couples to claim bereavement damages. Ms Smith argued that the legislation was in breach of her rights under Article 8 of the European Convention on Human Rights (ECHR) and Article 14 ECHR.
The Court of Appeal agreed, ruling that cohabiting couples should be eligible for bereavement damages and issuing a declaration of incompatibility with Article 14 ECHR, in conjunction with Article 8 ECHR, in respect of Section 1A FAA.
The remedial order is set to make two years' cohabitation immediately prior to death as the criteria for receiving compensation.
In the situation of two possible claimants (ie where the deceased was still married and not yet divorced or separated but had been in a new cohabiting relationship for at least two years) the award should be divided equally between the eligible claimants.
The remedial order does not change the amount of bereavement damages which is currently set at £12,980. It is expected to come into effect shortly.