Case demonstrates legal gap for cohabiting couples

If you’re living with someone in a committed relationship, sharing your home and perhaps raising children together, you might assume that you’re legally protected should things go wrong, right?

Unfortunately, as any lawyer specialising in cohabitation matters will confirm, this is a common misconception that can lead to significant distress and financial hardship.

Whether it’s due to a relationship breakdown or bereavement, cohabiting couples have no automatic rights in England. This leaves many people vulnerable in situations where they would have expected legal protection.

Cohabiting couples are not recognised under the intestacy rules, and they also lack protection under the Fatal Accidents Act 1976. This Act provides bereavement payments to a surviving spouse following negligence, but cohabiting partners are excluded.

As a result, countless couples are left without recourse at a time when they need it most.

Jakki Smith’s case highlights the problem

Jakki Smith’s story illustrates just how damaging this legal gap can be. Her long-term partner, John, passed away due to an undiagnosed infection.

She was devastated to discover that, despite their 11-year relationship, the law treated them differently because they weren’t married. Jakki was ineligible for bereavement damages under the Fatal Accidents Act 1976, a provision only available to spouses or civil partners.

This situation is not uncommon. Many cohabiting couples, like Jakki and John, are unaware of their lack of legal protection until it’s too late.

Jakki decided to challenge this injustice in court, arguing that the law’s exclusion of cohabiting partners from bereavement damages was a breach of her human rights.

Bereavement damages position breaches human rights

Jakki’s challenge was based on the European Convention on Human Rights, specifically Articles 8 (right to respect for private and family life) and 14 (principle of non-discrimination). Initially, the High Court rejected her claim, acknowledging that the law needed reform but did not find it incompatible with the ECHR.

However, the Court of Appeal disagreed, recognising that Jakki’s relationship deserved to be treated similarly to a marriage for the purposes of bereavement damages.

The Court ruled that cohabiting couples in stable, long-term relationships should be entitled to the same recognition and compensation as married couples or civil partners when a partner dies due to negligence.

This judgement was a significant step forward, though it highlighted the need for broader legal reforms to protect cohabiting couples.

Dependency claims recognise cohabitees, but bereavement damages do not

Interestingly, the Fatal Accidents Act does allow cohabiting partners to claim dependency damages if they had lived together for at least two years before the death.

However, when it comes to bereavement damages, cohabiting couples are still excluded. These payments are reserved for spouses, civil partners, and parents of a minor child, creating a stark legal inconsistency.

Jakki Smith had already received dependency damages through a settlement with the NHS, but she pursued her case on bereavement damages to highlight the injustice faced by cohabiting couples.

As Jakki says, ‘Attitudes have changed, society has moved on, and the law needs to be changed to reflect that.’

The need for legal reform

Jakki’s case demonstrates the urgent need for better legal protection for cohabiting couples.

No one should have to fight for recognition in court during such difficult times, whether it’s following a partner’s death or a relationship breakdown.

Cohabiting couples have no legal protection without marriage or civil partnership, and it’s time for the law to catch up with modern society.

At Thomas Mansfield Family Law, we believe that all relationships deserve recognition and protection. If you’re living with a partner and want to understand your legal rights, we are here to help.