For cohabiting couples there are rules about what financial claims may be made when cohabitation comes to an end. These rules have been subject to some criticism and have been under review for some time culminating in a Scottish Law Commission Report published this month making various recommendations for improvement. The recommendations are evolutionary rather than revolutionary.
The Report and its recommendations are not concerned with termination of cohabitation on death of one of the parties. That is to be addressed as a separate exercise.
The most significant recommendations are (1) for amending the definition of “cohabitant”, and (2) the test (and remedies) for financial provisions if the relationship breaks down. This Note focuses on those.
The definition of “cohabitant“
- Under the current rules, “cohabitant” is defined as meaning either member of a couple consisting of (a) a man and a woman who are (or were) living together as if they were husband and wife; or (b) two persons of the same sex who are (or were) living together as if they were civil partners.
- This definition, focusing as it does on living together “as if they were husband and wife/civil partners” was considered to be vague, inconsistent with that used in other legislation, outdated and not reflective of modern relationships.
- The proposed reformulation of the definition hinges on an “enduring family relationship”. It is recommended that “cohabitant” means one of two persons who:
(a) are (or were) living together as a couple in an enduring family relationship,
(b) are aged 16 or over,
(c) are not spouses or civil partners of each other, and
(d) are not closely related (as defined) to each other.
- In determining whether two persons are (or were) living together as a couple in an “enduring family relationship”, the court must have regard to all the circumstances of the relationship, including:
(a) its duration,
(b) the extent to which the persons live (or lived) together in the same residence,
(c) the extent to which the persons are (or were) financially interdependent,
(d) whether there is a child of whom the persons are the parents or who is (or was) accepted by the persons as a child of the family.
The test for financial provision; the “principles” to be applied; and the “orders” which may be made
- Various criticisms have also been levelled at the current criteria for financial provision and the Report recommends: a new test based on the application of guiding “principles” and taking account of resources; the introduction of new guiding principles; and a reformulation and expansion of the orders the court may make.
The test
- The Report recommends that in reaching a decision on a claim for financial provision the court must apply the following test:
- On the application of either cohabitant, the appropriate court must make such of the orders (if any) as are:
(a) justified on the application of certain “principles” and
(b) reasonable having regard to the resources of each of the cohabitants.
The “principles”
- The principles the court must apply are:
(1) where one cohabitant has:
(i) derived any economic advantage from the contributions of the other cohabitant, that economic advantage should be fairly distributed between the cohabitants,
(ii) suffered economic disadvantage in the interests of the other cohabitant or of a relevant child, the cohabitant should be fairly compensated for that economic disadvantage;
(2) a cohabitant who seems likely to suffer serious financial hardship as a result of the cohabitation having ended should be awarded such financial provision as is reasonable for the short-term relief of that hardship; and
(3) the economic responsibility of caring for a relevant child after the end of the cohabitation should be shared fairly between the cohabitants.
The orders that the court may make
If both parts (a) and (b) of the test are satisfied, the court must decide what order, if any, to make. Currently, the court may: make an order for payment of a capital sum; make an order for payment of such amount as is specified in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are parents; and make interim orders.
The Report recommends a different approach to orders relating to the economic burden of child care and also recommends the introduction of orders for payments (over a period not exceeding 6 months) for the short-term relief of serious financial hardship; orders for transfer of property; and various incidental orders.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Fiona Wayman: email Fiona@mitchells-roberton.co.uk