Bereavement damages and unmarried couples

As a lot of the information on this website points out, there can be a big difference in how married and unmarried couples are treated both in life and on death.  

At the end of last year another difference was brought into sharp focus – the ability to claim bereavement damages following a death due to negligence.   

When Jakki Smith’s partner of 16 years died following an operation, she discovered she was not entitled to statutory bereavement damages simply because they were unmarried.  Bereavement damages are a payment fixed by law for the grief and trauma suffered when someone dies due to the negligent actions of someone else.  It is currently fixed at £12,980 but is only available to married couples or parents of a child aged under 18 (provided the child is born to parents who are married to each other; if not, only the mother can make a claim – another difference between married and unmarried couples).  

Ms Smith challenged that inequality in the courts and, in November 2017, the Court of Appeal agreed with her that the government had breached her human rights by denying her the damages.   The government is now looking at changing the legislation.  A suggestion is that they may allow unmarried couples who have been living together for at least two years to be eligible for the award.  However, this is not the first time the government has been tasked with looking at this rather archaic law.  Back in 2009, the Law Commission recommended that cohabiting couples should be entitled to bereavement damages and the government produced some draft laws but these were never progressed.  

And we don’t have to look very far afield to see how generous the law could be.  In Scotland, the “immediate family” can claim bereavement damages and this includes spouses, cohabitees, parents, children, siblings and even grandchildren and grandparents.  There is also no limit on the damages which can be claimed.  

Unfortunately for Ms Smith, despite her success in the courts, she will not receive any money from the decision because there is no possibility of a retrospective payment.  And for the rest of us, it is certainly a case of “watch this space” for much-needed reform. 

Kris Arpon