Cohabitation Law – Time for Reform?

As the legal industry shifts towards a modern way of working, can the same be said for cohabitation law?

The number of cohabiting couples in Scotland continues to grow.  It is therefore essential that the law affecting cohabitants is up-to-date. The Scottish Law Commission (SLC) has recently published a discussion paper reviewing cohabitation law and the possible reforms required.

Whilst section 25-29 of the Family Law (Scotland) Act 2006 provides cohabitants with statutory rights, the various changes in society do not reflect the current legislation. Section 25-28 of the 2006 Act is often criticized for being vague, inconsistent and outdated. Having been 14 years since the Act was passed – is now the time to reform?

Section 25 of the 2006 Act provides a definition of a “cohabitating couple.” However, how up-to-date is this definition? The SLC have criticised s25 for defining the person and not the relationship. In fact, it fails to encompass couples in a contemporary society who may not conduct their relationship in the traditional manner. For instance, couples who are in a relationship but do not share a single common home.

According to the SLC, section 25 would be better equipped to include language that is gender neutral and sufficiently broad to cover various couples who make for a shared life together.

Section 26 and 27 of the 2006 Act provides particular rights to cohabitants in relation to household goods, other money and property. Again, the wording of these sections have been criticised by the SLC for being archaic and failing to incorporate modern couple’s economic arrangements. From the SLC’s perspective, focusing on each couple’s particular contribution towards a household would be far more appropriate.

The awards for financial provision detailed within s28 has received various comments. Many legal practitioners report that the lack of guidance in s28, together with the limited range of orders available, creates difficulty when advising clients on the value/outcome of their claim. The SLC take the view, that an alternative to a capital sum payment would be appropriate in instances where applicants have limited cash resources.

Furthermore, the one-year time limit in making a s28 claim has been regarded as being somewhat short. According to the SLC, an extension to the time limit may provide for additional leeway in application of this section. However, it is important that a balance is struck between protection from “stale claims” and allowing adequate financial remedies to former cohabitants.

It is clear that section 25-28 of the 2006 Act is in need of modernisation to better meet the needs of cohabitants in an ever-changing society. Whilst cohabiting couples are not afforded the same rights as married couples, the autonomy of individuals in an unregulated relationship must be protected.

Presently, the law surrounding cohabitation remains the same until such time as the consultation is completed and further attention thereafter given to this ever evolving area of law by the Scottish Government.  Should your cohabiting relationship come to an end and you think you may have a claim, or should you be considering entering into a cohabiting relationship and want advice in terms of your legal position, then please seek advice from our dedicated