Susie Mountain

The Scottish Law Commission has published its Report on Cohabitation. The report considers how the existing law governing the rights of cohabitants on separation might be revised and follows a lengthy consultation process with solicitors, academics, members of the public and decision makers.

In Scotland, we are already ahead of many jurisdictions in providing cohabitees with the right to seek financial awards from their former partner in the event of relationship breakdown. The remedies available to cohabitants on separation are enshrined in the Family Law (Scotland) Act 2006. Courts in such cases are afforded a broad discretion, making such cases inherently difficult to advise upon.

The recommendations will if implemented, by the Scottish government bring much needed clarity for clients and those advising them.

The recommendations made by the commission include the following key points:

• Revision 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”;
• The court must make an award to a cohabitant such as is “justified” and reasonable having regard to the parties’ resources;
• Specific reference to fairness. It is recommended that “fair” account should be taken of any economic advantages gained, or disadvantages suffered, by either cohabitant during the relationship; and “fair” sharing of the economic burden of childcare;
• Provision for relief should either party otherwise be likely to suffer serious financial hardship following the relationship breakdown;
• The introduction of a range of remedies which are not currently available as part of a cohabitation claim (which are currently restricted to payments of money):
  • Property transfer orders (eg a house being transferred from one party to the other);
  • Payments for short term relief from serious financial hardship (up to a maximum of six months);
  • Orders for valuation and sale of property; regulation of who occupies the family home and for payments relating to the home;
  • Interim orders; and
  • Ancillary orders to specify the date for payments/transfers.
• Discretion for courts to allow late claims “on special cause shown” (currently subject to a strict one year time limit from the date of the parties’ separation);
• The ability for parties to be able to extend the time limit for claims by agreement. This will allow time for parties to engage in constructive negotiation over a longer period prior to commencing court action;
• Provision specifying what should happen where parties have entered into formal written agreements prior to, or during, their cohabitation.

The report has been laid before the Scottish Parliament, so it is expected that the Scottish government may now carry out its own consultation and take forward the proposed draft bill with a view to revising the existing legislation.

Susie Mountain is a partner and solicitor advocate at Brodies LLP