Mon 20 Jul 2020


There has been ongoing debate, in both the English and Scottish legal systems, about how best to provide for unmarried couples in the legal system. In England, there have been numerous unsuccessful attempts to put in place specific legislation to provide for cohabitants when their relationship breaks down, in the way that there are rules about financial provision on divorce for married couples.   

In Scotland, legislation for cohabitants has been in place for over a decade - but there are few cases relating to this, and a suspicion that the laws about cohabitants are not widely known, other than amongst family lawyers.  The Scottish Law Commission has accordingly embarked on a review of Scottish law for unmarried couples, and the consultation period for this has just finished.  The Commission noted that as it stands, the law has been criticised as being out of date, unclear and overly complicated. 

Scots law defines a "cohabitant" as either member of a couple (opposite sex or same sex) who are (or were) living together as if they were spouses.  A former cohabitant has a quite limited right to apply for financial provision on the break-up of the relationship.  They can apply for a capital sum (not transfer of property, or a share of a pension, or maintenance).  The court may grant this, but only if the applicant has suffered an "economic disadvantage" in the course of the relationship, or the other person has gained an "economic advantage", and these advantages/disadvantages haven't balanced out.  

The first question in the SLC Consultation was whether the regime for financial provision for cohabitants on relationship break-up should remain separate from that for spouses on divorce - or whether the two regimes should in fact be exactly the same.  This is a question which has prompted some interesting debate - but my view is that there are some strong objections against such a policy change.

First, there is quite clear perception that in marriage, a couple are making a public commitment to each other which gives rise to legal and other obligations.  Understanding about rights arising from cohabitation is much more confused.  If there were a change to the law to treat cohabitants in the same way as a married couple, would anyone realise this other than family lawyers and academics?

Secondly, in attributing the same regime on separation to cohabitation as to marriage, the state would be not just giving "rights" but also imposing responsibilities on those who have not sought them.  Why should marital responsibilities be imposed on those couples who may have specifically chosen not to marry?

Cohabitation is also often used as a "trial" period before marriage, or for couples where it makes financial sense to move in together, rather than being a public commitment to each other for the rest of the couple's lives.  There was an English study from some time ago which found that the average cohabitation is fairly short, ending in either marriage or separation - I'd be interested to know whether that is the case for Scotland now, or not.  There is also an interesting theory that a major factor in relationship success is whether a positive decision is made to commit to the relationship, rather than "sliding" into the relationship.   In marriage, the positive decision/commitment is clear; in cohabitations, less so.  If it is the case that marriages are more likely to be a long-term and stable form of relationship than unmarried cohabitating relationships, there is at least a policy decision to consider as to whether increasing protections for cohabitants would actually have an overall negative effect on family stability.  Would it push more couples towards a "sliding" decision into cohabitation, rather than the commitment of marriage?  If cohabitation provisions remain lesser than marriage, would it result in the financially weaker party having a weaker set of legal protections? 

There are undoubtedly hard cases, where a cohabitation has been lengthy and where having the same legal protections on separation as a married couple would feel entirely fair.  But the old truism is that hard cases make bad law.  It will be interesting to see how the Law Commission manages to balance these competing objectives. 

If you'd like to learn more about the services we can provide to unmarried couples, please visit our dedicated page. 

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