Currently, in situations where someone dies from mesothelioma because of the negligence of an employer, the law discriminates against the partner of the deceased in terms of compensation if they are not married.
This is because damages claims for dependents for loss of financial support generally come under the Fatal Accidents Act, which mostly applies to long-term partners in the same way as spouses, save for one important element.
Both cohabitees and spouses can be eligible for a dependency claim for the financial losses suffered by them as dependents of the deceased, plus a claim for funeral expenses, if paid by the dependents.
However, the third element of this Act – the statutory bereavement award – only applies if the deceased was your wife, husband, civil partner or child (under the age of 18) and is a fixed sum of £12,980, paid in addition to any dependency claim.
So a claim on behalf of a cohabiting partner of the deceased would effectively be nearly £13,000 less than that of a spouse.
But, in some recent positive legislative news, important steps have been taken towards ensuring bereaved cohabitees of more than two years receive the same statutory compensation as married people and civil partners via the draft Fatal Accidents Act 1976 (Remedial) Order 2020, which has recently been welcomed by the parliamentary Human Rights Committee.
The gap in the law discriminating against cohabitees of someone who dies under the Act was identified by the Court of Appeal in 2017 (Smith v Lancashire Teaching Hospitals [2017] EWCA Civ1916). Here, the Court upheld that the denial of damages to a claimant whose cohabiting partner of 11 years died was a breach of their right to private and family life, and paves the way for equality for those who lose a partner, married or not.
And, in a further progressive move, MPs and Peers considering the new draft have suggested that the ‘two-year’ requirement for cohabitees be removed, not least to prevent the Act being susceptible to further human rights challenges.
The hope is that the draft progresses through Parliament as quickly as possible to ensure financial support is available to dependents who have suffered this type of bereavement, regardless of their matrimonial status.