The Marriage (Same Sex Couples) Act makes no specific amendment to the Fatal Accidents Act 1976.
This contrasts with the changes made by the Civil Partnership Act 2004 when the Fatal Accident Act was specifically amended to include civil partners and those living in a civil partnership type relationship for two years or more.
There is however no lacuna in the law.
The reason that there was no reason for a specific amendment in the new Act is that Section 1(3) of the Fatal Accidents Act specifically states that dependant means “the wife or husband or former wife or husband of the deceased”.
Section 11 (1) of the Marriage (Same Sex Couples) Act states.
“Effect of extension of marriage
(1) In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”
Schedule 3 Part 2 of the Act states:
“(2) The following expressions have the meanings given—
(a) “husband” includes a man who is married to another man;
(b) “wife” includes a woman who is married to another woman”
So the terms “husband” and “wife” in the Fatal Accidents Act now cover same sex couples who are married.
REMEMBER SAME SEX COHABITEES CAN BE DEPENDANTS
It is a simple matter to determine whether a couple are married or have entered a civil partnership. The Civil Partnership Act amended the definition of dependant in the Fatal Accident Act to cover cohabitees who had been living in a civil partnership relationship. More specifically s 1(3)(b) states that the definition of dependant includes
“(b) any person 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;”
There has been some case law as to what is meant by “living together” in the case of heterosexual couples but none yet, to the best of my knowledge, in relation to same sex couples.
A future post will examine the case law on “cohabitees” in some detail.
(I am grateful to my colleague Marissa Allman for her assistance with this issue.
Her recent post on the main aspects of the new Act can be found at
http://www.zenithchambers.co.uk/site/zenith_news/newsdetail/top_ten_guide
Her book on Children and Same Sex Families can be found at
FATAL ACCIDENTS AND ACTIONS ARISING FROM DEATH 