Whether the property rules for separating cohabitants should be the same as those for divorcing couples is one of the questions posed by the Scottish Law Commission in its Discussion Paper on Cohabitation, published today.

With many thousands of couples in Scotland living together in committed and mutually dependent and supportive relationships, without being married or having a civil partnership, it is essential, the Commission states, that the law affecting cohabitants is kept up to date. 

While the Family Law (Scotland) Act 2006 gives cohabitants statutory rights where none previously existed,  and there is still no equivalent south of the border, there have been changes in society and in attitudes to relationships and families in Scotland since the legislation was introduced.

The Scottish law has been criticised as being out of date, unclear and overly complicated. In particular, criticism has focused on the definition of a "cohabitant", the policy reasons for making awards for financial provision on breakdown of a relationship, the test for awards, the time limit for applications, and the limited remedies available. 

In its 156 page paper the Commission concentrates on financial provision on separation, since provision on intestacy following death is currently being considered as part of a Scottish Government consultation.

It asks for views on issues including:

  • Should the regime for cohabitants on breakdown of a relationship be the same as that for spouses and civil partners?
  • How should "cohabitant" be defined?
  • Should cohabitants have lived together for a minimum length of time before they can access financial remedies if the relationship breaks down?
  • What is the purpose of financial remedies on breakdown of cohabitation? Is financial provision required for relief of need, to compensate for economic loss, or something else?
  • Is the current test for making an order for financial provision on cessation of cohabitation too complicated? If so, how could it be improved?
  • Should wider remedies, such as property transfer, pension sharing and maintenance be available to former cohabitants?
  • Should the court be able to take account of, vary or set aside contractual agreements between cohabitants when deciding an application for financial provision?

It also believes public awareness of the present law has not improved since it was introduced – though some appear to believe that they already enjoy equivalent rights to divorcing couples. The paper comments: "It is difficult to understand why these common misconceptions persist. But persist they do, and awareness should now be raised of the true legal position of cohabitants."

Presenting the main issue, the Commission comments: "The question for us is whether there remains justification for retaining separate regimes in Scotland for financial provision on cessation of cohabitation and for financial provision on divorce and dissolution of civil partnership. If there is, we then need to ask whether the regime for financial provision for separating cohabitants should be aligned more closely to that on divorce and dissolution. If not, we need to consider whether there is now a need or policy justification for a single regime for financial provision when adult intimate relationships come to an end otherwise than on death, and what special provisions, if any, should be made for cohabitants within that regime."

Kate Dowdalls QC, lead commissioner on the project, said: "Problems in this area of law were identified shortly after the 2006 Act came into force. Criticism continues and reform is long overdue. We are keen to hear from anyone interested in the law relating to cohabitation, particularly cohabitants and their advisers. The responses we receive now will help us to shape policy and make proposals for future reform of the law."

Click here to access the discussion paper. Responses can be made until 31 May 2020.