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Unmarried woman wins legal fight over bereavement damages

A woman who was denied bereavement damages after her long term partner died has won a landmark legal battle to win fairer compensation for unmarried people who lose their partner.

Jakki Smith from Chorley in Lancashire had been living with her partner, John Bullock, for 16 years and it was only after his death in 2011 at the age of 66 from an infection which spread to his brain when it was missed by doctors that Jakki discovered she was not entitled to the statutory bereavement award of £12,980 as she and John had never married.

The bereavement award is fixed by law and is only paid out to a spouse or civil partner or to a parent of an unmarried child under the age of 18. Up until now a cohabitee has not been entitled to this award, no matter how long the couple have been living together.

The Court of Appeal has however now allowed Ms Smith's challenge against a High Court ruling dismissing her claim.

Human rights breach

Ms Smith's legal team argued that current legislation was in breach of the European Convention on Human Rights and that the statutory award payment should be available to anyone who had been in a relationship for at least two years.

Ms Smith - who will not get any money from the decision as there is no possibility of retrospective payment - said later that she had found it 'hurtful and unfair' that her unmarried relationship could be considered 'less meaningful'.

"John and I had planned a life together, we were in it for the long run and the fact that our bond wasn't recognised, simply because we hadn't chosen to marry, was very upsetting," she said.

"Just because John and I hadn't said vows to each other and didn't wear wedding rings didn't mean we weren't completely committed to each other. My fight has never been about the money, it's about having meaningful relationships recognised."

Historic decision

Ms Smith's lawyer, Zac Golombeck, called the decision historic and long overdue.

"The Court of Appeal has made clear in its judgement that Jakki and John's relationship was equal in every respect to a marriage in terms of love, loyalty and commitment," he said.

"We hope that Parliament will now rectify the incompatibility and bring this legislation into the 21st century."

Challenge to law over cohabiting partners

The case is the latest to challenge the law over unmarried couples.

  • In February, five Supreme Court judges ruled Denise Brewster - who claimed she was being discriminated against after being denied access to her late partner's occupational pension because he hadn't signed a form nominating her as a beneficiary - was entitled to receive payments under the pension scheme. They condemned the form as 'unlawful discrimination' because anyone married, doesn't have to fill it in. Until this ruling, public sector pension schemes had demanded them for couples who were not married.
  • Earlier this year, a High Court judge ruled that a Northern Ireland mother-of-four, who never married, was entitled to widowed parent's allowance. The judge said denying a benefit aimed at easing financial pressure on bereaved families was discrimination. Ms McLaughlin, from County Antrim, challenged Northern Ireland's Department for Social Development's decision to refuse her both bereavement benefit and widowed parent's allowance. Her claims were initially turned down because she was neither married nor in a civil partnership at the time of her partner's death in 2014. They had been together for 23 years.

Background to the law on bereavement damages

Although there is now pressure, following Ms Smith's successful appeal, for the law to change, the entitlement to bereavement damages as it stands is limited to a very small group of people:

  • If the deceased is an adult you have to be their spouse or civil partner to be eligible;
  • If the deceased is a child you must be either the parents of the legitimate child or the mother of the illegitimate child.

There is currently no provision for a bereavement award for couples who co-habit, regardless of whether or not they have children, unlike in Scotland where bereavement damages can be claimed by cohabitees and other family members.

Compensation should go to those closest to the deceased

Bereavement damages were introduced in 1982 and ever since, there have been calls for a reform in the law. In 1999, the Law Commission produced a paper on 'Claims for Wrongful Death' which recommended extending the category of claimants to parents of deceased children (regardless of legitimacy) and long-term partners.

Following the consultation period, a report showed that 80% of the responses were in favour of extending the award to co-habiting couples with the consensus being that compensation should be available to those closest to the deceased. It was suggested that there be a qualifying period of two years co-habitation prior to the deceased's death, mirroring that required to claim a dependency award.

Similar reforms were suggested by the Law Commission in 2009. These suggestions became the Civil Law Reform Bill which proposed extending the category of those eligible to those wholly or partly maintained by the deceased immediately before death. However, this Bill was subsequently dropped by Parliament.

In October 2015, The Negligence and Damages Bill, brought by Labour MP and personal injury solicitor Andy MacDonald, proposed extending the category of persons entitled to bereavement damages to include co-habiting couples.

This Bill was due to have its second reading in the House of Lords on 13 May 2016 but this never happened and it now seems to have been forgotten about. Further to this there is also the Cohabitation Rights Bill which, if passed, will give greater legal rights to people living together, including if one of them dies. This has had its second stage reading in the House of Lords and is now at the committee stage.

To find out more about the law for cohabitees, please contact Wards Solicitors specialist cohabitation team and for medical negligence queries and claims, Partner Alison Underhill.