The government has presented a draft proposed Remedial Order to amend section 1A of the Fatal Accidents Act 1976. If implemented, the statutory bereavement award will be recoverable by a ‘cohabiting partner’ of the deceased. Where both a spouse and qualifying cohabitee are eligible for the statutory bereavement award, it is proposed that the award will be split equally between them.

Where a death is caused by the wrongful/negligent act or omission of another person, two distinct claims are possible: -

  1. for the benefit of the deceased’s estate under the Law Reform (Miscellaneous Provisions) Act 1934;

  2. on behalf of the deceased’s dependants under the Fatal Accidents Act 1976 (FAA).

Section 1A of the FAA provides for a fixed sum of bereavement damages to be awarded to a limited category of persons. The level of the award is set by the Lord Chancellor. In England and Wales, the level of the award has been set at £12,980 since 1 April 2013. Currently, the award is only available to the wife, husband or civil partner of the deceased; and to the parents of a deceased child.

In Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others [2017] EWCA Civ 1916, the Court of Appeal held that section 1A is incompatible with Article 14 and Article 8 of the European Convention on Human Rights because it denies an award of bereavement damages to an individual such as Ms Smith who had lived with the deceased as his unmarried partner for over 2 years immediately prior to his death.

If implemented in its current form, the Remedial Order will add cohabiting partners to the class of claimants eligible to recover bereavement damages, provided that they:

(a) were living with the deceased in the same household immediately before the date of death; and

(b) had been living with the deceased in the same household for at least 2 years before the death; and

(c) were living, during the whole of that period, as the husband or wife or civil partner of the deceased.

In cases where both a qualifying cohabitant and a spouse is eligible (i.e. where the deceased was still married and not yet divorced or separated but had been in a new cohabiting relationship for at least two years) it is proposed that the award should be divided equally between the eligible claimants.

The new provisions will apply to causes of action which accrue on or after the day on which the Order comes into force, which is expected to be later this year.

Whilst the proposed changes bring parity between spouses, civil partners and cohabitees, inequality remains in the level of award within the different jurisdictions of the United Kingdom. As of 1st May 2019, the award in Northern Ireland was increased to £15,100. No statutory limit is set in Scotland where such damages are awarded on a case by case basis.

Further Information

If you would like any further information on the above, please contact a member of our Corporate Risk & Insurance or Medical Negligence Team.




Geldards Private Client teams continue to lead the way for High Net Worth
Lawyers from the Cardiff and Midlands based Private Client teams at Geldards have once again been named as leading teams and individuals in the Chambers and Partners High Net Worth legal rankings 2019.


Leaving a Legacy
24th September 2019
We are pleased to announce that our 3rd annual All-Wales Charity Governance, Law and Finance Conference will be held on Tuesday 24th September 2019 at the All Nations Centre, Cardiff.


Thoughts from Europe - a MIPIM blog
I am European, I feel European. Grinding my way around the major assembly that is the world at MIPIM, it’s such a reminder that even Europe is not the centre of most people’s universe.


Salus – Wealth and Family Protection
Salus Magazine is brought to you by the Private Client team at Geldards to help you protect your wealth and family.

Content Contacts


Donna Makin


Partner, Cardiff

+44 (0)29 2039 1749


Spencer Collier


Partner, Cardiff

+44(0)29 2039 1704