FAMILY LAW SCOTLAND ACT 2006

Cohabitation under the family law Scotland act 2006



Cohabitation under the family law Scotland act 2006

The days of an unmarried couple setting up home together, with no legal rights or obligations being imposed on this arrangement, are soon to be over. The Family Law (Scotland) Act 2006, which came into force on 4 May 2006, has introduced entirely new rights for cohabitants in Scotland.

There has not been a huge amount of publicity about these new rights for cohabiting couples, to say the least, and considering the fact that there are over 150,000 couples cohabiting in Scotland, this may lead to future difficulties as the vast majority of those living together will be unaware that the legalities of their relationship have changed.(Stein, 1982) To attempt to combat this, the Family Law Association is planning a campaign to raise public awareness of the Act and its implications.

Discussion

An unclear definition The Scottish law has much in common with the recommendations that the Law Commission for England and Wales made to the Government in 2007. A Law Commission Advisory Group (of which Marilyn Stowe was a member) helped to formulate the final recommendations and green paper produced by the Commission.  Its conclusion: that due to the unsatisfactory recognition of cohabitants' rights in this country, new legislation was required. The Law Commission Advisory Group recommended that unmarried couples should be able to apply to the court for financial relief should their relationship break down. It felt that in order to maintain a distinction between married couples and cohabiters there should be a “minimum duration requirement” of 2 years spent living together, when there were no children. There would also be the opportunity of “opt out” agreements for couples who did not wish to obtain a financial settlement order from the court.(Merriman,,1996)

Sections 25-29 of the new Act deal with cohabitants. Section 25 provides a definition. Under section 25(1) a “cohabitant” is a person who is, or was, living with another person as if they were husband and wife, or two persons of the same sex who are or were living together as if they were civil partners. So far, so clear, however, section 25(2) then goes on to muddy the waters, by stating that in “determining for the purposes of sections 26-29” (the remaining sections on cohabitation) whether a person is a cohabitant of someone else, the court shall have regard to (a) the length of the period during which they lived together, (b) the nature of the relationship during that period and (c) the nature and extent of any financial arrangements subsisting or which subsisted during that period. Therefore, we are given a straightforward definition of cohabitant, and then a list of factors which should be considered when deciding whether or not someone is a cohabitant. (Stein, 1982)

This seems contradictory and confusing. Under the new Act it is conceivable that a person could have multiple cohabitants - for example, someone who works away from home may have different cohabitants in different ...