The Scottish Law Commission released its “Report on Cohabitation” on November 2, 2022. Following a protracted consultation process with lawyers, academics, the general public, and decision-makers, the paper explores how the current law governing cohabitants’ rights upon separation might be amended.
The Scottish Law Commission released its “Report on Cohabitation” on November 2, 2022. Following a protracted consultation process with lawyers, academics, the general public, and decision-makers, the paper explores how the current law governing cohabitants’ rights upon separation might be amended.
In Scotland, cohabitees already have the right to pursue financial awards from their former spouse in the event of a relationship collapse, which puts us ahead of many other jurisdictions. The Family Law (Scotland) Act 2006 stipulates the remedies open to cohabitators upon separation. Due to the wide latitude given to courts in such circumstances, it is difficult to provide advice in such cases. If the Scottish Government follows the proposals, it will provide much-needed clarity for clients and those who are advising them.
The following significant suggestions are made by the commission:
- Revision of the term “cohabitant” and the criteria the court could use to determine whether parties are indeed “cohabiting.” Nowadays, involvement in an “enduring relationship” rather than something akin to marriage or a civil partnership is the key criterion.
- The court must make an award to a cohabitant that is “justified” and reasonable taking into account the parties’ resources; It is advised that the court considers all of the relationship’s circumstances in determining whether the parties were “cohabiting.”
The recommendations made by the commission include the following key points:
- Revisal of the definition of “cohabitant” and how the court might assess whether parties are indeed “cohabiting”. Being involved in an “enduring relationship ” is now the key test rather than being analogous to marriage or civil partnership. It is recommended that the court takes into account all of the circumstances of the relationship in reaching a view as to whether parties were “cohabiting”;
- A cohabitant must receive an award from the court that is “justified” and reasonable in light of the parties’ financial circumstances; fairness is specifically mentioned. It is advised that a “fair” account be taken of any financial benefits or disadvantages that each cohabitant may have incurred throughout the partnership, as well as a “fair” division of the cost of childcare.
- A provision for assistance should either party otherwise be susceptible to experiencing severe financial difficulty following the end of the relationship;
- The inclusion of a variety of remedies—which are currently limited to monetary payments—that are not currently available as part of a cohabitation claim:
- Orders transferring property (such as transferring ownership of a home); Payments for temporary relief from extreme financial distress (up to a maximum of six months);
- Orders for property assessment and sale, rules governing who occupies the family home and payments related to the home, interim orders, and
- ancillary orders defining the due date for transfers and payments.
- Courts’ discretion to grant late claims “on special reason proved” (now restricted to claims filed strictly within one year after the date of the parties’ separation);
- the potential for parties to extend the deadline for claims by mutual agreement. As a result, the parties will have more time to engage in productive negotiations before filing a lawsuit;
- Specifies what should happen in cases where parties have signed formal written agreements before or while cohabiting.
After the report was presented to the Scottish Parliament, it is anticipated that the Scottish Government will now conduct its own consultations and move forward with the suggested draught Bill in an effort to update the current laws.
