Provide for complex cases: Faculty cohabitant response

People in multiple relationships have not been considered by the Scottish Law Commission in its discussion paper on cohabitation, the Faculty of Advocates said today.

Faculty has issued its response to the paper, in which the Commission examines the statutory financial rights for cohabitants, and poses the question whether there should continue to be a distinction between these and the rights of spouses and civil partners.

Faculty's practice is not to hold any particular position on policy matters, though it observes that a balance may require to be struck between maintaining the value of marriage and civil partnership as key units in Scottish society, and the autonomy of those who do not choose to marry, on the one hand, and fair treatment of separating cohabitants, including protection of the vulnerable, on the other.

However it suggests that failing to recognise that a person may remain married while being in a cohabiting relationship with another, for example, is an omission in the paper.

"If that person is to be subject to claims from a spouse or civil partner and a cohabitant, that may give rise to complexity and a need to prioritise between the two claims", Faculty points out.

"It may be considered unfair for the claim of a spouse to be reduced by reference to the need to provide for a cohabitant. There may equally be concerns about a person claiming financial provision from a spouse and at the same time from a cohabitant.

"This issue is not addressed in the discussion paper and should, in our view, be considered. The problems arising from contemporaneous marriage and cohabitation may be avoided to some degree by recognition of different purposes for the two sets of provisions."

Regarding the issues raised in the paper, Faculty believes that the Family Law (Scotland) Act 2006 over-complex, unclear and in need of reform, as regards financial provision for separating cohabitants.

For the definition of "cohabitant", it favours a broad general definition based on the key elements "that the couple have been living as partners in an intimate and committed relationship characterised by emotional and financial interdependence and they are not married or civil partners".

It argues against a minimum period of cohabitation to qualify for financial provision, as this may cause hardship in borderline cases. "It would be more straightforward to justify a definite qualifying period if the proposed benefit on separation were tightly defined and available as of right, but if financial provision is to be awarded by reference to the merits of the individual case, this sits uneasily with a restriction based on a qualifying period of cohabitation."

If cohabitants' rights are to be made equivalent to those on divorce or dissolution of a civil partnership, Faculty believes it may be necessary to revise the terms of the Family Law (Scotland) Act 1985. "At present, spouses and civil partners will share the net value of property acquired between marriage and separation... They do not share the net value of property acquired before marriage", Faculty states. 

"If an unmarried couple, on separation, share the net value of property acquired during cohabitation a claim may exceed the claim available were they to marry. We are familiar with cases where a couple decide to marry after a long cohabitation, and then separate shortly after marriage. It would appear somewhat strange if marriage reduced a claim for financial provision."

It also supports the court having more flexible powers, including the ability to order a transfer of property.

On balance, Faculty favours retention of the one-year time limit after separation for making a claim, but with a discretion to the court to extend this "if it seems equitable to do so".

Click here to view the full response.