Cohabitation: why no "unfair settlements" provision?

It has become apparent in recent cases I have been instructed on that the Family Law (Scotland) Act 2006 has a massive gap in its provisions for cohabiting couples. The 2006 Act, unlike the 1985 Act provisions for married and civil partnership couples, gives the courts no legislative powers to set aside, in part in or in whole, minutes of agreement regulating financial provision or share of matrimonial assets.

It is hard to see what justification there is for such a failing in an Act which follows a long line of legislation and amendments, starting in 1985, seeking to bring equality to the variety of relationships in society today.

Flawed agreements

Section 16 of the Family Law (Scotland) Act 1985 was introduced in response to the Scottish Law Commission Report on Family Law (1981). Although noting the desirability of parties being able to negotiate a settlement and confirm this by way of agreement, the Commission was aware of inherent problems with these agreements.

First, it had to protect the economically weaker party, which suggested that the courts should have some control over agreements for financial provision.

Secondly, and in my view more importantly, it cautioned the following: “The parties to a pending divorce action are not always on the same footing as two strangers negotiating freely from a position of strength. There are often opportunities for emotional blackmail, particularly if there are children, and it seems to us on that ground, as well as on the ground of procedural convenience, it is desirable that the courts should have some power to control agreements on financial provision even if they are not challengeable at common law.”

Duly, Parliament obliged these concerns and s 16 was brought into force. It should be noted that the power to set aside has stringent tests that mean the court must be satisfied on a great number of points before granting a crave for such an order. See Gillon v Gillon 1994 SLT 978. We cannot go into that within this article, however.

When looking at the 2006 Act, we note that there is no s 16 equivalent. This may be due to the watering down of the provisions for cohabiting couples in general when compared to similar provisions in the 1985 Act. From my perspective, the 2006 Act is poor legislation which seems to pander to popular opinion over legal and social considerations. That being said, there is an attempt to right some of the wrongs, even if the Act has not gone far enough.

The lack of an equivalent to s 16, however, is a huge hole in the legislation, which cannot be justified. In the lead-up to the 2006 Act, the Scottish Law Commission (Report no 135, at para 16.46) rightly recognised that cohabitation agreements should not be considered illegal and advised that legislation should follow that opinion. In recognising this legal point they observed: “The typical cohabitation relationship nowadays… is a reciprocal arrangement for living together, supporting each other and sharing important areas of life, which is often indistinguishable from marriage from the factual point of view.”

No distinction

Despite this recognition of the “indistinguishable” state, the Commission and Parliament failed or wished not to acknowledge this fact when dealing with the ramifications of such an agreement. In recognising that the nature of cohabitants and married couples is factually the same, they seem to have ignored the fact that it follows that the same “inequalities” recognised in the 1981 report and subsequently the 1985 Act are inherent to both. Simply because a couple do not tie the knot does not mean that they are somehow immune to the same power disparity in relationships that affect married couples.

This has led to cases where an equivalent to s 16 would have allowed me at least the opportunity of setting aside a couple’s minute of agreement that, from my view, was completely unfair. I could only turn to the client and explain that because they were not married and due to the common law not allowing it in the circumstances, they would simply have to “lump it”. This has given rise to the threat of losing their houses in some cases.

It cannot be a fair or correct assertion by lawmakers that simply because marriage has some special place in society, these individuals are not protected in the same way that civil partners or spouses are. I may be kind and put this down to oversight, but the fact remains, given the lawmakers’ own recognition of the indistinguishable nature of the legislated relationships, they should see fit to amend the 2006 Act or remedy the situation through further primary legislation.