Can Cohabiting Couples Claim a Bereavement Award?

Bereavement damages or award are a fixed statutory payment available to a narrowly defined group of people when a death has been caused by another person or organisation’s wrongful act, neglect or default.

The right to claim is governed by section 1A of the Fatal Accidents Act 1976. Although the law now includes certain unmarried partners, many close family members remain excluded.

Who can claim a bereavement  award?

A statutory bereavement award may be claimed for the benefit of:

• the deceased’s husband or wife;
• the deceased’s civil partner;
• a qualifying cohabiting partner; or
• the parents of a child who died before reaching 18, subject to the specific statutory rules concerning parental entitlement.

The deceased’s death must have resulted from a legally actionable wrongful act, neglect or default. The existence of a close family relationship does not, by itself, establish a claim against another party.  For further information see our Bereamvent Award page on how to claim and who is entitled.

Can an a surviving cohabiting partner claim the bereavement award?

Yes. A qualifying cohabiting partner can now claim bereavement damages.

The law was changed by the Fatal Accidents Act 1976 (Remedial) Order 2020, which came into force on 6 October 2020.

To qualify, the surviving cohabinting partner must ordinarily establish that they:

• lived with the deceased in the same household immediately before the death;
• had lived with the deceased in the same household for at least two years immediately before the death; and
• lived with the deceased throughout that period as though they were married or civil partners.

This means that being in a relationship for two years is not necessarily enough. The couple must have shared a household in a settled relationship equivalent to marriage or civil partnership during the qualifying period.

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Why was the law changed?

The change followed the Court of Appeal decision in Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others [2017] EWCA Civ 1916.

Ms Smith had lived with her partner, Mr Bulloch, for approximately 11 years before he died following admitted clinical negligence. Despite the permanence and commitment of their relationship, the legislation then in force prevented her from receiving bereavement damages because they were not married.

The Court of Appeal concluded that excluding a long-term cohabiting partner was incompatible with Articles 8 and 14 of the European Convention on Human Rights. Parliament subsequently amended the Fatal Accidents Act through the 2020 Remedial Order.

The change is now fully in force. It is no longer correct to say that cohabitants are excluded from bereavement damages in England and Wales.

What does “living in the same household” mean?

The legal test concerns a shared household rather than simply occupying the same property. Conversely, maintaining separate properties or using different addresses for correspondence will not always prevent a claim.

The court may consider:

• where the couple ordinarily lived;
• the permanence and stability of the relationship;
• shared financial arrangements;
• responsibility for bills and household expenditure;
• mutual care and practical support;
• whether they presented themselves publicly as a couple;
• their intentions concerning their shared life;
• childcare and wider family responsibilities; and
• evidence from relatives, friends and other independent witnesses.

Brief periods of separation may not necessarily end the qualifying period. For example, temporary absence caused by employment, hospital treatment, caring responsibilities or relationship difficulties must be considered in the context of the relationship as a whole.

Our guide to cohabitation claims under the Fatal Accidents Act explains how the courts approach shared households and separate addresses.

What evidence can prove cohabitation?

Evidence will depend upon the circumstances, but may include:

• council tax and utility bills;
• tenancy or mortgage documents;
• bank statements and joint accounts;
• insurance policies;
• electoral registration records;
• correspondence sent to the shared home;
• photographs and records of family events;
• evidence of holidays or significant purchases;
• nominations under pension, employment or life-insurance schemes;
• evidence of childcare and household responsibilities; and
• witness statements from relatives, friends, neighbours or colleagues.

A couple does not necessarily need a joint bank account or jointly owned property. The court considers the complete factual picture.

How much is the bereavement award?

For deaths occurring on or after 1 May 2020, the statutory bereavement award in England and Wales is £15,120.

This is a fixed sum. It is not individually calculated by reference to the depth of the relationship, the circumstances of the death or the grief experienced by the survivor.

We have repeatedly criticised the amount and the limited categories of people entitled to receive it. No fixed sum can properly represent the loss of a loved one.

Is there a separate award for every eligible relative?

No. The £15,120 is a single statutory bereavement award arising from the death.

Where more than one person is entitled, the award must be divided between them. Significantly, if both a spouse or civil partner and a qualifying cohabiting partner are eligible, the award is shared equally.

It is therefore incorrect to say that a surviving spouse always takes priority over a qualifying cohabitant.

Who cannot usually claim the statutory award?

Under the present law, the following people are not ordinarily entitled to bereavement damages solely because of their relationship with the deceased:

• a child who loses a parent;
• the parents of a child aged 18 or over;
• brothers and sisters;
• grandparents;
• grandchildren;
• unmarried partners who do not satisfy the two-year cohabitation test;
• close friends; and
• other relatives outside the statutory categories.

This remains one of the most heavily criticised features of the legislation. Further information is available in our guide explaining who cannot claim the bereavement award.

Someone who cannot receive the fixed bereavement award may nevertheless have another type of fatal accident claim. Eligibility for dependency damages is considerably wider.

Is a bereavement award the whole compensation claim?

No. Bereavement damages are only one possible part of a wider claim.

Depending upon the circumstances, compensation may also include:

• loss of income and financial support;
• loss of pension benefits;
• loss of childcare, care and domestic services;
• funeral expenses;
• medical and care expenses incurred before death;
• damage to personal belongings; and
• compensation belonging to the deceased’s estate for pain, suffering and losses incurred before death.

Our dependency claim guide explains how lost income, care and practical services may be valued.

A person may be entitled to dependency compensation even though they are not eligible for the statutory bereavement award. The two questions must be considered separately.

What if the death resulted from violent crime?

Deaths caused by murder, manslaughter and other crimes of violence may involve different routes to compensation.

A civil claim may sometimes be possible against a responsible individual or organisation. The family may also be able to apply under the Criminal Injuries Compensation Scheme.

CICA bereavement payments are governed by separate eligibility rules and should not be confused with the £15,120 statutory award under the Fatal Accidents Act. Our guidance on compensation following the murder of a relative explains the distinction.

What is the time limit?

Fatal accident claims are commonly subject to a three-year limitation period. Depending upon the case, time may run from the date of death or a later date of knowledge.

Different rules can apply to children, deaths caused by industrial disease, accidents abroad and CICA applications. Families should not wait for an inquest or criminal proceedings to finish before obtaining advice about limitation.

Specialist advice for bereaved families

The law distinguishes between bereavement damages, dependency claims, funeral expenses and claims belonging to the deceased’s estate. Different family members may have different entitlements.

R James Hutcheon Solicitors acts for bereaved families throughout England and Wales. We can investigate the circumstances of the death, identify every available claim and advise whether a spouse, civil partner, unmarried partner, parent or other dependant is entitled to compensation.

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