Cohabitation Reform (Family Law)
The Scottish Law Commission has recently published their “Report on Cohabitation”, which considers possible reforms to the existing law on the rights of cohabitants on separation. This follows consultation with the public, solicitors, decision makers and other stakeholders into the reforms they recommend for the law on cohabitation.
A link to the report can be found here (https://www.scotlawcom.gov.uk/files/9716/6722/6739/Cohabitation_Report_Draft_Bill.pdf)
A cohabitant is currently defined as:
- either member of a couple consisting of a man and a woman who are (or were) living together as if they were husband and wife; or two persons of the same sex who are (or were) living together as if they were civil partners.
- In determining whether a person (“A”) is a cohabitant of another person (“B”), the court shall have regard to—
(a)the length of the period during which A and B have been living together (or lived together);
(b)the nature of their relationship during that period; and
(c)the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.
The existing law in respect of cohabitants is set out in the Family Law (Scotland) Act 2006 which offers remedies for cohabitants on separation. The court has a broad discretion when making any award to a cohabitant and so it can be very difficult to advise upon. There is also fairly limited case law available since the 2006 legislation was enacted to provide guidance as to the way in which the court may make decisions in relations to any awards made.
It is expected that that the Scottish government might carry out its own consultation now that the report has been laid before the Scottish Parliament. It’s hoped that they will take forward the proposed draft bill to allow the existing legislation to be revised, and therefore strengthening and improving the rights of cohabitants on separation.
The recommendations made by the Scottish Law Commission in relation to changes to the law are summarised as follows:
• Revising the definition of cohabitant
• Introduction of a range of remedies for cohabitants. These are not currently available to cohabitants on separation. The report suggests that cohabitants should be able to have the remedy of transfer of property (i.e. a house being transferred from one person to the other) orders for sale and valuation of property; regulation about who can occupy the family home and payment to the home; interim orders; and relief for either party if they would suffer serious financial hardship following the relationship breakdown;
• They have indicated that there should be fairness. It states that fair account should be taken of any economic advantage gained or disadvantage suffered by either party during the relationship; and also fair sharing of the economic burden of childcare. The current legislation does not make specific reference to fairness.
• Provision for situations where parties have entered into formal written agreements prior to or during their cohabitation and what should happen in such a situation.
• Parties to be able to extend the current time limit for claims by way of agreement. This would allow parties to enter into negotiations or for these to take place for a longer period without having to commence court action to protect their position (currently the time limit is 12 months from date of separation)
• The Court to have discretion to allow late claims being lodged on special cause shown.
• Any award made by the court to cohabitant should be ”justified” and reasonable having regard to the parties resources.
If you are in a cohabiting relationship, are considering separating or have recently separated, please do not hesitate to get in touch with our Danielle Stevenson for initial advice: 01383 431 101 or info@caritaslegal.co.uk
