COURT OF APPEAL DISMISSES MOTHER'S DEPENDENCY CLAIM

The common law wife of a man killed at work by the admitted negligence a third party was held in Swift v Secretary of State for Justice [2013] EWCA Civ 193 not to be entitled to claim as a dependent under the Fatal Accident Act 1976, although their posthumously born child was. Whilst the Court of Appeal is undoubtedly correct in its interpretation of the 1976 Act this does not detract from the unfairness of these statutory provisions. 

Section 1 of the 1976 Act restricts the entitlement to present a dependency claim to cohabiting partners who fall within the following categories:

·         the wife or husband or former wife or husband of the deceased (however short the marriage);

·         the same sex civil partner or former civil partner of the deceased (however recently the relationship was registered);

·         any other person (e.g. a ‘common law’ partner) who

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

(ii) had been living with the deceased in the same household for at least two years before that date; and

(iii) was living during the whole of that period as the husband or wife or civil partner of the deceased;

The rationale behind these provisions has been to restrict the entitlement to claim as a dependent to those partners whose relationship possessed a sufficient degree of permanence. However, this has produced an anomalous result in Swift v Secretary of State for Justice whereby the bereft infant was able to claim but its mother was not. 

Ms Swift had only been living with the deceased for 6 months prior to his death.  The 2 year cohabitation rule ignores the fact that Ms Swift and Mr Winters had not only planned to have a child but had actually conceived one by the time he killed.  Surely this is a good enough indication of Mr Winter’s future intention to maintain the mother and child and of a commitment to permanent relationship.

All the Government has achieved by the retention of the anomalous two year qualifying period for cohabiting parties under section 1(3) of the 1976 Act and by dropping the last Government’s proposed reforms to the Fatal Accident Act 1976 is to deliver on a plate a substantial windfall to liability insurers; delivered at the expense of the long suffering public who will be required through their taxes to support Mr Winter’s bereaved common law partner.

This ruling exposes the contradictions in Government’s policymaking. On the one hand our Prime Minister is prepared to risk alienating many of his party faithful by pressing ahead with the Marriage (Same Sex Couples) Bill, yet on the other hand he seems content to perpetuate the relegation of the rights of cohabiting partners to a distinctly second class status.  

Surely one day, some moderately bright spark at the Centre for Policy Studies is likely to wake up to the fact that according to the ONS over 5 million people chose to cohabit outside marriage.  Furthermore, that by capitulating to the insurance industry lobbyists, the conservatives may well have driven an additional nail into their electoral coffin.  5 million voters represent a sizeable proportion of the electorate, by any standard.  The conservatives only won 11 million votes last time! 

Can any political party really afford to ignore or offend this growing class of the voting public? Surely now would be a good time for the Government to reconsider its obdurate and misguided stance towards cohabiting couples, to revisit the Law Commission’s sensible and just recommendations and to wake up its own real politik / self interest in remedying these inconsistencies.

Cohabiting partners are also disadvantaged under the common law, particularly when it comes to separation and property rights. This is the focus of the first programme in Clive Anderson’s new BBC Radio 4 show, Unbelievable Evidence.  It will be interesting to hear his views.