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  4. Fairer law for Scots cohabitants drawn up by Commission

Fairer law for Scots cohabitants drawn up by Commission

2nd November 2022 | family-child law | Family and relationships

Important changes to the law affecting people cohabiting without being married or in a civil partnership have been recommended by the Scottish Law Commission, in a report published today.

They focus on rights if the relationship comes to an end, clarifying when a claim for financial provision can be made and how it should be assessed, aimed at achieving a fair outcome for both parties. 

While the Family Law (Scotland) Act 2006 gave cohabitants in Scotland statutory rights where none previously existed, continuing changes in society and in attitudes to relationships and families have led to the law being criticised as out of date, unclear and overly complicated.

Criticisms include the definition of a “cohabitant”; the purpose of financial awards  on the breakdown of a relationship; the test for awards; the time limit for applications; and the limited remedies available. 

Following a detailed review and extensive consultation, the Commission makes the following key recommendations: 

  • a more modern and inclusive definition of “cohabitant” that does not rely on comparison with married couples or civil partners;
  • a clearer test for the court to apply when separated cohabitants claim financial provision, including guiding principles aimed at achieving fair outcomes for both parties, underpinned by factors relevant to their application, and consideration of resources;
  • a broader range of remedies, including orders for transfer of property and for short term payments for relief of serious financial hardship;
  • provision requiring the court to take account of agreements between cohabitants when deciding an application for financial provision, unless an agreement is successfully challenged as not fair and reasonable at the time it was entered into;
  • retaining the one year time limit for claims, but introducing flexibility so that late claims may go ahead on special cause shown, with an absolute limit of two years from the date the cohabitation ends;
  • provision enabling the couple to agree extension of the time limit so that they can negotiate settlement, also subject to the two year limit.

Kate Dowdalls KC, lead commissioner on this project, commented: “Problems in this area of law were identified shortly after the 2006 Act came into force. Reform is long overdue. Our recommended reforms are aimed at achieving fairer outcomes for cohabitants when their relationships break down, by clarifying and simplifying the law as well as providing a broader range of remedies."

Thanking everyone who took an interest in the project, including the public responses, she added: "These contributions, and others, have helped shape policy and enabled us to make recommendations for change in this important aspect of family law."

Access the report here.

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