Time to get involved

We now have a chance to contribute to making positive changes to the law.

The Scottish Law Commission (SLC) is currently conducting a review of the law relating to cohabitation (excluding succession issues).  Kate Dowdalls QC is the Scottish Law Commissioner who heads up this review.  As one of the members of the SLC’s Cohabitation Advisory Group I am keen to encourage your participation. Due to current circumstances, the consultation period, which was scheduled to end on 31 May, has now been extended to 30 June 2020.

The SLC’s Aspects of Family Law Discussion Paper on Cohabitation was published in February 2020 and responses are invited by 30 June 2020.  The SLC has also produced an Executive Summary which, at only 7 pages long, provides a very accessible overview to the Discussion Paper.

Those of you who have already had an opportunity to read the Discussion Paper will have seen that this is a very detailed and comprehensive body of work.  In addition to an in depth analysis of the Family Law (Scotland) Act 2006, it includes the background to the review, the SLC’s previous work, and the policy objectives of the Scottish Government in relation to the 2006 Act.  The key issues for consideration are explored together with relevant case law and an interesting examination of what provisions exist for separating cohabitants in other jurisdictions.

The background to the review is that, prior to the 2006 Act, there was no legislative provision for cohabitants when their relationships ended.  It was considered unsatisfactory that cohabitants had no remedy available to them other than unjustified enrichment to resolve financial disputes following the ending of a relationship.  The principle behind the 2006 Act was to provide rights for cohabitants and, in particular, to protect vulnerable individuals on the breakdown of a relationship or death of a partner.  It was not intended that former cohabitants would be provided with the same legal remedies as married couples or civil partners on divorce or dissolution of civil partnership. 

However, it is recognised that the legislation is not working as well as it could and would benefit from review.

Sections 28 and 29 of the 2006 Act for the most part are based on recommendations made in the SLC’s Report published in 1992. Since then there has been a significant increase in cohabitation in Scotland.  The Discussion Paper includes data published by the Office for National Statistics which shows that the number of families in the UK continues to grow with cohabiting families growing the fastest. In addition, there have been significant changes in other areas of family law as well as considerable changes in social attitudes so far as adult relationships are concerned.

Back in the 1990s, as now, the primary issue continues to be a concern about how best to balance a desire to protect the economically vulnerable and a desire to protect freedom of the individual.  Should marriage-like legal consequences be imposed on couples who have deliberately chosen to opt out of marriage or civil partnership? On the other hand, there are people for whom the decision has not been taken deliberately. A relationship may have begun informally but, over time, become a settled and longstanding relationship.  In this situation, if the relationship ends, there may be a need to protect the vulnerable party.  The challenge is how to achieve the protection of autonomy whilst also protecting the economically vulnerable. 

In attempting to review the legislation it quickly becomes apparent that, although it is easy to find fault and to point to the problems and inconsistencies, it is very difficult to come up with solutions.  

However, even if we do not have all of the answers, we should not be deterred. This opportunity for review has been a long time coming.  It affords us a chance to bring about positive change.

The Discussion Paper poses a number of questions inviting responses. These questions have also been produced in a separate Response Form to help make it easier to respond.

Kate Dowdalls QC is keen to emphasise that all responses are very welcome. There is no requirement to answer all of the questions. You may wish to address only some of the questions.

In a recent discussion with Kate she told me, “I am delighted that the Scottish legal profession, academics and members of the public have taken such a keen interest in our review of this area of the law. It is apparent that there are difficulties, and the need for change has been identified. Where the solutions lie is more difficult to determine. I would urge anyone who has an interest in the subject to respond to the Discussion Paper by 30 June 2020. Views expressed in responses will assist us in formulating policy and making recommendations to the Scottish Government for change.”

Now is the time to contribute!