You have been living together in a trusting and loving couple but not married. Your partner dies in a fatal accident/incident at work or on the road. What are your rights?
A common question asked. There is no doubt that if a couple is married there are stronger laws to protect the surviving partner. But cohabitation claims under the Fatal Accidents Act 1976 are increasingly common, particularly as modern relationships do not always fit traditional models. A key issue that frequently arises is whether a claimant must have lived at the same address as the deceased to qualify as a dependant. They key is that the laws fall under the Fatal Accidents Act, which is outdated, 1976.
This article explains the legal test, the approach taken by the courts, and how the case law applies in practice.
The Legal Test
Under section 1(3)(b) of the Fatal Accidents Act 1976, a dependant includes a person who:
lived with the deceased in the same household for at least two years immediately before death as husband and wife or civil partners
The wording appears straightforward, but in practice the interpretation of “same household” is far from rigid.
For death of a family member generally who wishes to make a dependency claim see are article ‘Compensation for Death of a family member.’
The Real Issue in Dispute
In many cases, the duration requirement is easily satisfied. For example, a relationship spanning 19 years will clearly meet the two year threshold.
The real question is whether the parties were living in the same household.
This is where disputes arise, particularly where:
- the couple maintained two properties
- they did not formally share a tenancy or mortgage
- they divided their time between addresses
Do You Need One Shared Address?
The short answer is no.
The courts have consistently confirmed that there is no strict requirement for:
- a single shared address
- continuous physical occupation
- a formal joint tenancy or ownership
Instead, the court adopts a broad and realistic approach.
The Court’s Approach
The courts focus on the substance of the relationship rather than formal arrangements.
Key factors include:
- stability and permanence of the relationship
- mutual commitment
- shared domestic life
- emotional support
- financial interdependence
This reflects the reality of modern relationships, where couples may maintain flexibility in their living arrangements.
Leading Case Law on Cohabitation
The following authorities provide clear guidance on how the courts approach cohabitation under the Fatal Accidents Act 1976.
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27
A leading authority confirming that living together as husband and wife is a question of fact and degree. The court emphasised the importance of stability, permanence and mutual commitment, rather than formal living arrangements.
External source: BAILII judgment
Kotke v Saffarini [2005] EWCA Civ 221
The Court of Appeal confirmed that cohabitation must be assessed over the whole course of the relationship. Periods apart do not necessarily break cohabitation.
External source: BAILII judgment
Swift v Secretary of State for Justice [2013] EWCA Civ 193
The court reinforced that the correct test is whether the parties were living together as husband and wife in substance, not form.
External source: BAILII judgment
Burns v Edman [2018] EWHC 1950 (QB)
Particularly relevant where couples maintain two properties. The High Court accepted that cohabitation can exist without a single shared address, provided there is a shared domestic life.
External source: BAILII judgment
Dunn v Mici [2008] EWCA Civ 842
Confirms that dependency and family relationships are to be approached broadly and as matters of fact.
External source: BAILII judgment
Wood v Bentall Simplex Ltd [1992] PIQR Q332
Establishes that dependency includes services such as care and domestic support, not just financial reliance.
Applying the Law to Real Life Scenarios
Where a couple for example:
- have been in a long term relationship such over 2 years
- spend four to five days per week living together
- keep belongings at each other’s homes
- are recognised by family and friends as a couple
the court is likely to find that they were living together as ‘husband and wife’ or single sex type marriage and the surviving partner be eligible to claim compensation for dependency in respect of a fatal accident claim.
The existence of two properties does not, in itself prevent a finding of cohabitation if, in reality, the parties operated as a single domestic unit. Fatal Accident Solicitors like us will require evidence in support however, see below.
Evidence That Strengthens a Cohabitation Claim
To support a claim, the following evidence is particularly useful:
- financial support or shared expenses
- time spent living together each week
- personal belongings at each property
- holidays and social life as a couple
- recognition by friends and family
- evidence of mutual care and support
Likely Defence Arguments
Defendants often argue:
- the parties maintained separate households
- there was no financial interdependence
- the arrangement was informal or casual
However, long duration and a consistent pattern of shared living arrangements will often outweigh these arguments.
Can a Cohabiting Claim a Bereavement Award?
The surviving partner may have a claim for dependency and can claim for a statutory bereavement award pursuant to section 1A of the Fatal Accidents Act 1976. At all material times, the Claimant cohabited with the Deceased for a continuous period exceeding two years immediately prior to death in a relationship akin to that of husband and wife, thereby satisfying the statutory criteria for eligibility. This claim is made subject to there being no surviving spouse or civil partner with a prior entitlement to the award. The inclusion of cohabiting partners within the scope of section 1A follows the decision in Smith v Lancashire Teaching Hospitals NHS Foundation Trust, which confirmed that the previous exclusion of qualifying cohabitants was incompatible with Convention rights and required legislative amendment.
Following that decision, the government introduced the Fatal Accidents Act 1976 (Remedial) Order 2020, which amended section 1A of the Fatal Accidents Act 1976.
As a result of that amendment:
- A cohabiting partner can now claim the bereavement award
- They must have lived with the deceased for at least two years immediately before death
- The relationship must have been as husband and wife or civil partners
So the legislation was expressly updated to cure the incompatibility identified in Smith.
However, there are still important limitations:
- The award remains a fixed statutory sum
- Where there is more than one qualifying claimant in the same category, the award is shared
- If there is a spouse or civil partner, they retain priority and will take the award
Likely Outcome
On strong facts, particularly a long relationship combined with regular cohabitation for most of the week, there is a good arguable case that the claimant qualifies as a dependant under the Act.
A single shared address is not required under the Fatal Accidents Act 1976.
The court will look at the reality of the relationship. If it functioned in substance like a marriage, with stability, permanence and shared domestic life, a claimant can succeed even where two properties were maintained.
For further guidance on dependency claims, including eligibility and compensation, see our page on the bereavement award scheme in the Fatal Accidents Act 1976.
Disclaimer
This article is for general information only and does not constitute legal advice. It should not be relied upon as a substitute for specific advice on your individual circumstances. No liability is accepted for any reliance placed upon it.
