The rights of cohabiting couples – or the lack of them – have been in the news for the last week or so. In her recent Times interview (£), as well as calling for no-fault divorce in England and Wales Lady Hale voiced support for new legal rights for unmarried couples. The number of unmarried couples living together has more than doubled in recent years, from 1.5 million in 1996 to 3.3 million in 2017; and on Monday, Resolution, formerly known as the Solicitors Family Law Association, published the results of a ComRes survey which found that:
- two-thirds of people in cohabiting relationships are unaware that there is no such as thing as “common-law marriage” in England and Wales;
- four in five cohabitants agree that the legal rights of cohabiting couples who separate are unclear;
- seventy-nine per cent of the public agrees that there is a need for greater legal protection for unmarried couples upon separation; and
- eighty-four per cent of the public agrees that the Government should take steps to ensure that cohabiting couples are aware that they do not have the same legal protection as married couples.
Coincidentally, in Smith v Lancashire Teaching Hospitals NHS Trust & Ors  EWCA Civ 1916, the Court of Appeal (the Master of the Rolls, McCombe LJ and Sir Patrick Elias), heard a challenge to the regime of bereavement damages under section 1A of the Fatal Accidents Act 1976. The appellant was the surviving opposite-sex cohabiting, unmarried partner of Mr John Bulloch, who had died following the admitted negligence of the first two defendants. But because she was not married to Mr Bulloch and could not enter a civil partnership with him, Ms Smith was not eligible for bereavement damages under the 1976 Act, which requires a tortfeasor to pay bereavement damages to the spouse or civil partner of the deceased and various other persons, but not including a 2 years+ cohabitee :
“The introduction of bereavement damages into the FAA was made by the Administration of Justice Act 1982 … The 1982 Act also extended the definition of ‘dependant’, for the purposes of dependency damages, to include a 2 years+ cohabitee. The resulting distinction between a dependency claim and a claim to bereavement damages in that respect was not discussed in Parliament at all during the passage of what became the 1982 Act. There is no evidential material which explains the reason for the distinction” .
Ms Smith claimed that her ineligibility breached her rights under Article 14 ECHR (discrimination), read with Article 8 (respect for private and family life). The Secretary of State for Justice was joined as a third defendant to defend the human rights part of the claim, the remaining parts having been settled by the first two defendants.
On Monday, the Court of Appeal found in favour of Ms Smith. Delivering the judgment of the Court, Sir Terence Etherton MR rejected the argument that, because an award of bereavement damages is a fixed sum payable only after death, “that is to say, once the family relationship has come to an end” it cannot be said in any meaningful way to promote family life . Moreover, the emphasis both in the judgment at first instance and in the submissions of the Secretary of State on the “promotion” of family life, as distinct from the promotion of “respect for … family life” as specified in Article 8, was misplaced:
“It is apparent from the very fact that bereavement damages are limited in section 1A(2)(a) to the spouse or civil partner of the deceased that bereavement damages are specifically intended to reflect the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners. It inevitably follows that the scheme for bereavement damages is properly regarded as a positive measure, or modality, by which the State has shown respect for family life, a core value of Article 8” .
The current scheme for bereavement damages in section 1A of the FAA, with its exclusion of unmarried cohabitees like Ms Smith, fell within the ambit of Article 8 – on the ground of the link with the core value of respect for family life in Article 8 .
He agreed with the judge at first instance that,
“in the context of bereavement damages under section 1A of the FAA, the situation of someone like Ms Smith, who was in a stable and long-term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of Article 14 in conjunction with Article 8 … In the context of this particular scheme, it is not the special legal status and legal consequences of marriage and civil partnership that are material, in the sense of providing a rational distinction with other people and relationships … Rather, it is the intimacy of a stable and long-term personal relationship, whose fracture due to death caused by another’s tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees” .
The Court allowed the appeal, dismissed the respondent’s notice, set aside the order of the court below and made a declaration of incompatibility with Article 14 in conjunction with Article 8 in respect of section 1A of the FAA in that it excludes 2 years+ cohabitees .
Ms Smith’s solicitors noted that the Law Commission had previously recommended that cohabiting couples should be eligible for bereavement damages and that the Government had produced a draft Bill on the matter in 2009 which was never progressed.
Society seems to be drifting slowly towards the view that the law needs to recognise the reality of relationships rather than concentrating on their legal form: see, for example, recent “gig economy” employment law cases such as Autoclenz Ltd v Belcher & Ors  UKSC 41 and Uber BV v Aslam & Ors  UKEAT 0056/17/1011. Whether there will be a change in the law, only time will tell – but the Smith case points up the need for, at the very least, a thoroughgoing look at the current law and suggests that the Government may have been wrong to reject the Law Commission’s offer to do so.
[Note for fellow-pedants: Cohabiting couples can be recognised under Scots law in some circumstances under the provisions of the Family Law (Scotland) Act 2006. And while s.3 of that Act abolished “marriage by cohabitation with habit and repute”, it did not invalidate subsisting irregular marriages – it merely declared that the existence of cohabitation with habit and repute would not, henceforth, effect a valid marriage.]