Still left holding the baby

Over 30 years ago, the Scottish Law Commission recommended what were then regarded as radical reforms of the law on cohabitation, albeit it was never its intention that non-marital cohabitation should be on a par with marriage. 

As its Report on Family Law (Scot Law Com No 135, 1992) put it, the law “should neither undermine marriage, nor undermine the freedom of those who have deliberately opted out of marriage… [and]… should be confined to the easing of certain legal difficulties and the remedying of certain situations which are widely perceived as being harsh and unfair” (para 16.1).

It took 14 years for these recommendations to find their way into statute (Family Law (Scotland) Act 2006), and even then the drafting differed significantly from the Commission’s infinitely better proposals. The provisions have been criticised consistently by practitioners and the courts, despite Lord Hope’s efforts in Gow v Grant [2012] UKSC 29 to inject a degree of clarity. A further flaw in the operation of the law is that there are widespread public misconceptions about its content, with many believing that cohabitants have greater rights than they do.

The Commission reported to that effect when it returned to the subject recently (Report on Cohabitation (Scot Law Com No 261, 2022), paras 1.6-1.7). That report sought to address the current statutory shortcomings, proposing many useful and much-needed reforms, both during cohabitation and on its termination (other than by death). However, its recommendations do not seek to place cohabitants in the same legal position as those who have formalised their relationship by marrying or registering a civil partnership.

A common regime?

The first question asked by the Commission in its preceding discussion paper (DP No 170, 2020) was whether a separate regime should be retained for cohabitants. A majority of the 41 responses favoured doing so (2022 Report, paras 2.11-2.21), although a majority of the 241 respondents to a public attitudes survey for the Commission favoured treating cohabitants, spouses and civil partners in the same way, at least in certain circumstances (para 2.23).

Legal consequences matter most when relationships break down. The Commission justified its approach as follows: “in the absence of evidence of clear, unqualified and unequivocal support from a majority of the legal profession, the academic world, equality groups and the general public, it is not possible for us to recommend reform of the law to the extent required to fully align the regimes for financial provision on cessation of cohabitation, divorce and dissolution of civil partnership” (para 2.38).

In the name of full disclosure, I should make it clear that my preference is for the law to treat qualifying non-marital cohabitation in the same way as marriage and civil partnership, subject to giving the parties the same opportunity to opt out of the legal consequences as is currently afforded to spouses and civil partners. That course has been taken in a number of other jurisdictions, with New Zealand’s Property (Relationships) Amendment Act 2001 being something of a trailblazer, an approach recently endorsed again by the New Zealand Law Commission (Report No 143, 2019). The Scottish Law Commission, however, has made its policy decision to take the more cautious path, so I will resist the temptation to repeat the case for a common regime. (For a full discussion, see Elaine E Sutherland, Child and Family Law (3rd ed, 2022), Vol II, paras 1-122–1-146, summarised at paras 2-018–2-019 and 6-521.)

Present focus

Excellent overviews of the Commission’s most recent proposals can be found elsewhere, one co-authored by the lead Commissioner on the project (Kate Dowdalls and Lucy Robertson, “Splitting up: a fairer scheme”, Journal, November 2022, 16), and another by a solicitor with considerable experience in the field (Jamie Foulis, “Scottish Law Commission Report on Cohabitation” (2023) 181 Fam LB 1).

This article focuses on one particular aspect of the Commission’s recommendations: sharing the economic burden of caring for a child when cohabitants separate. The parent who bears the greater burden of day-to-day care will usually be the mother, so any resulting economic imbalance represents another layer of adversity heaped on the many women who face systemic gender inequality in Scotland today. But this is not only – or even primarily – about adults. If money is tight in the child’s primary home, there is an increased likelihood that the child will grow up in poverty with all its attendant disadvantages and lifelong impact.

The current law – and its shortcomings

At present, when cohabitation ends other than by death, in addition to making an interim order (2006 Act, s 28(2)(c)), the court may make an order requiring one former cohabitant to pay the other a capital sum in respect of advantage gained, disadvantage sustained and contributions made (s 28(2)(a)). These orders are not the focus of this article. Rather, our concern is with the additional power to “make an order requiring the defender to pay such amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents” (s 28(2)(b)).

For historical reasons relating to child support that need not detain us, that provision does not have its origins in the Scottish Law Commission’s 1992 Report, so it bears no responsibility for the provision’s many shortcomings.

As s 28(2)(b) makes clear, awards are only competent in respect of the future care of “a child of whom the cohabitants are the parents”, and that includes a child adopted by the couple and where one partner is treated as the other parent under the Human Fertilisation and Embryology Act 2008.

It does not include a child “accepted” as a member of the family (2006 Act, s 28(10)). Why accepted children are excluded, when they are regarded as relevant to awards under s 28(2)(a) and for the purpose of aliment (Family Law (Scotland) Act 1985, s 1(1)(d)) is unclear.  

It will be remembered that, for spouses and civil partners, the 1985 Act seeks to ensure that the economic burden of future childcare is “shared fairly” between the parties, providing the court with a list of “relevant factors” to guide it in its determinations (ss 9(1)(c) and 11(3)). In contrast, s 28(2)(b) of the 2006 Act makes no mention of fairness and there is no list of relevant factors. Instead, in considering any award, the court is directed to have regard to the matters referred to in s 28(3) (economic advantage/disadvantage), but not those in s 28(5) and (6) (offsetting of same). Nor does s 28 as a whole make clear whether parties’ resources are relevant to the decision.

The 1985 Act anticipates that an order for payment of a periodical allowance may be made to a former spouse or civil partner in order to effect fair sharing of the future burden of childcare (s 13(2)). Awards to former cohabitants under the 2006 Act, s 28(2)(a) are expressly limited to ordering the payment of a capital sum, albeit the order may provide for payment at a specified date or by instalments (s 28(7)).

There is no similar explicit limitation on orders under s 28(2)(b), and I have argued elsewhere (Child and Family Law, op cit, Vol II, para 6-511) that a case can be made that the court can order periodic payments. Granted, it is not the strongest of arguments, which may explain why it appears not to have been made to a court (I do wish someone would give it a try). In any event, at present, the courts have often ordered the payment of fairly small capital sums, sometimes in instalments over a much shorter time than the child will require to be cared for. Another consequence of limiting awards to the payment of a capital sum is that, while periodic payments can be varied if circumstances change, there is no such flexibility in respect of capital awards.   

What the Commission proposes

The Commission recommends substituting a suite of new provisions for s 28. These bear a resemblance to the well regarded provisions in the 1985 Act, supplying principles to guide the courts when considering what, if any, orders to make and relevant factors in respect of each. 

For the burden of future childcare, one principle that the court would apply is that “the economic responsibility of caring for a relevant child after the end of the cohabitation should be shared fairly between the cohabitants” (new s 28B(1)(c)).

The language has been softened, with “economic responsibility” replacing “economic burden”, and the goal of fair sharing of the responsibility is made explicit. A number of the other shortcomings in the current s 28(2)(b) are also addressed. Awards would be made in respect of a “relevant child”, to be defined as including both a child of whom the cohabitants are the parents and an accepted child (new s 28G(1)). Any award made by a court would have to be justified under the principles and “reasonable having regard to the resources of each of the cohabitants” (new s 28(2)), so the relevance of resources is again spelt out. In considering whether to make an award, the court is directed to have regard to a list of relevant factors, set out in new s 28C(3) and (4). In short, the court’s goals and the criteria it must apply are made clear.

So far, so good. Where the Commission’s recommendations fall short is in respect of the tools the court is given in order to give effect to the principles. While the list of remedies has been enlarged, with the addition of the power to order transfer of property (new s 28(3)(c)), the making of periodic payments for up to six months to offset serious financial hardship (new s 28(3)(b)), and a number of incidental orders (new s 28(4)), there is no power to order periodic payments in respect of future childcare.

Future childcare represents an ongoing cost to the primary carer, through curtailed opportunity to be active in the workforce and/or the need to pay someone else to provide care for children not in school while the parent is working. That reality is recognised for former spouses and civil partners, who can receive a periodical allowance in respect of future childcare. The Commission rejected the idea of making similar provision for former cohabitants, seemingly seeing it as too similar to aliment (2022 Report, para 5.49). While an award of a capital sum or using the new power to order transfer of property will be helpful in some cases, many cohabitants have no savings or property. At best, many defenders will have an income and, while ordering payment of a capital sum by instalments over a period of years would be possible, the courts have not shown any enthusiasm for making such orders for the length of time a child may require to be cared for.  

A better way

The Commission is to be commended for addressing non-marital cohabitation, not least because professional and public opinion is divided on how the legal system should treat it. Many of its recommendations, if implemented, would improve the 2006 Act. When it turned to the issue of sharing the economic burden of childcare, again, what it has recommended would improve the law. The problem is that it has not been bold enough and the courts would still lack the essential tool – the power to order periodic payments – with which to ensure that the economic responsibility is truly shared fairly. 

Certainly, there are other sources of financial support available to the parent who has primary responsibility for care, including child benefit, the Scottish child payment, universal credit, a range of grants, aliment (in limited situations), and the user-unfriendly child support system. These, however, are available to former spouses and civil partners, so they are no justification for treating differently parents who simply lived together in the past.

It is to be hoped that the Scottish Government introduces legislation to implement the recommendations more quickly than happened with those from 1992. There were encouraging signs in its Programme for Government 2021-22 (at p 119). However, there was no mention of legislation on cohabitation in the Programme for Government 2022-23.

Assuming that it does so, our elected representatives will have an input on its content. Perhaps they will add the power to order periodic payments to the tools available to the court when it seeks to ensure that the economic responsibility for future childcare really is shared fairly between former cohabitants.