Cohabitation law review scope finalised by Commission

A scoping exercise for its planned review of legal aspects of cohabitation has been completed by the Scottish Law Commission.

The review is the first phase of the Commission's planned five year project considering aspects of family law, led by commissioner Kate Dowdalls QC, who was appointed in July 2018. 

Its family law team will focus on the law relating to cohabitants as set out in ss 25-28 of the Family Law (Scotland) Act 2006. The following issues, in particular, will be considered:

• Should there be separate regimes for financial provision for separating spouses and cohabitants?
• Is the definition of cohabitant apt in the 21st century?
• What purpose is served by ss 26 and 27 (which cover rights in certain household goods, and money and property)?
• What is the purpose of an award under s 28(2)(a) or (b) (which provide for financial orders following separation)?
• Should a wider range of remedies be available?
• Is the definition of "child" in s 28(2)(b) too narrow?
• Does the test in s 28(3)-(6) meet the policy aims of certainty, fairness and clarity? If not, how might it be improved?
• Should resources be taken into account?
• Should provision be made to set aside or vary cohabitation agreements in certain circumstances?
• Is the time limit for claims under s 28 (one year after separation) too short? If so, should it be extended or should there be judicial discretion to allow late claims?
• Should the remedy of unjustified enrichment be available to former cohabitants (in addition to/instead of) a claim under s 28?

During 2019 the Commission will consult with stakeholders including legal practitioners, academics and individuals and organisations outwith the legal profession. In addition, it will establish an advisory group to assist the team with work including comparison with regimes for cohabitants in other jurisdictions. A discussion paper is planned for the beginning of 2020 and, following the consultation process, the Commission hopes to issue a report on the law in early 2021.

It will then consider what area of family law will be reviewed during the second phase of the project. The team has in mind a review of civil remedies for domestic abuse, which would consider, among other matters, whether the existing legislation provides victims of abuse and violence with prompt and effective protection. However the decision as to the content of this phase will be taken at a later date.

Click here for information on the family law project.