23 May, 2019
The Ministry of Justice has announced proposals to amend the Fatal Accidents Act 1976 to allow bereavement damages to be available to cohabitees.
The proposed Remedial Order will enable a person who has cohabited with the deceased person for a period of at least 2 years immediately prior to the death, to claim an award for bereavement damages. The proposed Remedial Order rectifies an incompatibility with the European Convention on Human Rights 1950 identified by the Court of Appeal and implements the landmark judgment from Smith v Lancashire Teaching Hospitals NHS Foundation Trust & ors ( EWCA Civ 1916.
The Remedial Order also provides that in instances where both a qualifying cohabitant and a spouse is eligible (i.e. 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.
A formal change in the law has been anticipated for some time following the decision in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust. As pointed out in the Proposal for the Remedial Order, there is likely to be some impact on the insurance industry in meeting claims for bereavement damages from the additional category of claimant but in reality the number of future awards is likely to be low.