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DISCUSSION PAPER No170) (DISCUSSION PAPER No170) Aspects of Family Law Discussion Paper on Cohabitation discussion paper Aspects of Family Law Discussion Paper on Cohabitation February 2020 DISCUSSION PAPER No 170 This Discussion Paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission NOTES 1. Please note that information about this Discussion Paper, including copies of responses, may be made available in terms of the Freedom of Information (Scotland) Act 2002. Any confidential response will be dealt with in accordance with the 2002 Act. We may also (i) publish responses on our website (either in full or in some other way such as re-formatted or summarised); and (ii) attribute comments and publish a list of respondents' names. 2. Where possible, we would prefer electronic submission of comments. A downloadable electronic response form for this paper as well as a general comments form are available on our website. Alternatively, our general email address is [email protected]. 3. Please note that all hyperlinks in this document were checked for accuracy at the time of final draft. 4. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that the pdf version of this document available on our website has been tagged for accessibility. 5. © Crown copyright 2020 You may re-use this publication (excluding logos and any photographs) free of charge in any format or medium, under the terms of the Open Government Licence v3.0. To view this licence visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3; or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU; or email [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available on our website at https://www.scotlawcom.gov.uk/. Any enquiries regarding this publication should be sent to us at [email protected]. ISBN: 978-0-9500276-8-5 Produced for the Scottish Law Commission by APS Group Scotland, 21 Tennant Street, Edinburgh EH6 5NA ii The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 (as amended) for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Right Honourable Lady Paton, Chair Kate Dowdalls QC Professor Frankie McCarthy. The Chief Executive of the Commission is Malcolm McMillan. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. The Commission would be grateful if comments on this Discussion Paper were submitted by 31 May 2020. Please ensure that, prior to submitting your comments, you read notes 1-2 on the facing page. Respondents who wish to address only some of the questions and proposals in the Discussion Paper may do so. All non-electronic correspondence should be addressed to: Lorraine Stirling Scottish Law Commission 140 Causewayside Edinburgh EH9 1PR Tel: 0131 668 2131 iii iv Contents Abbreviations .......................................................................................................................... xi Glossary ................................................................................................................................. xv Chapter 1 Introduction ..................................................................................................... 1 Background ............................................................................................................................. 1 Aspects of Family Law project ................................................................................................ 2 Phase 1: Cohabitation ............................................................................................................. 3 Introduction ............................................................................................................................. 3 Previous Commission work on cohabitation ........................................................................... 3 Factual background ................................................................................................................ 4 Statistical information: family forms ........................................................................................ 4 Statistical information: litigation ............................................................................................... 5 Legislative and policy background .......................................................................................... 6 Awareness of the 2006 Act provisions and “common law marriage” ...................................... 7 General policy ......................................................................................................................... 9 Structure of this Discussion Paper ........................................................................................ 11 Content of Chapters .............................................................................................................. 11 Structure of Chapters ............................................................................................................ 12 Comparative law ................................................................................................................... 12 Advisory Group and acknowledgements .............................................................................. 13 Legislative competence ........................................................................................................ 14 Chapter 2 Separate regimes? ........................................................................................ 16 Introduction ........................................................................................................................... 16 Current law ............................................................................................................................ 16 Cessation of cohabitation ...................................................................................................... 16 Divorce and dissolution of civil partnership ........................................................................... 17 Commission’s 1992 recommendations ................................................................................. 19 Policy objective ..................................................................................................................... 19 Criticism of current law .......................................................................................................... 20 Comparative law ................................................................................................................... 22 Australia ................................................................................................................................ 22 Ireland ................................................................................................................................... 24 New Zealand ......................................................................................................................... 25 v Canada ................................................................................................................................. 27 Nordic countries .................................................................................................................... 29 Comparative statistics ........................................................................................................... 31 Summary ............................................................................................................................... 32 Discussion ............................................................................................................................. 33 Options for reform ................................................................................................................. 35 Chapter 3 Who benefits? ................................................................................................ 36 Part 1 - Definition of cohabitant ......................................................................................... 36 Introduction ........................................................................................................................... 36 Background ........................................................................................................................... 36 Section 25 of the 2006 Act .................................................................................................... 36 Commission recommendations ............................................................................................. 37 Policy objective ..................................................................................................................... 39 Living together as if husband and wife .................................................................................. 40 Significance of children ......................................................................................................... 41 Criticism of the current definition ........................................................................................... 41 Case law on section 25 of the 2006 Act ................................................................................ 42 Definition of cohabitant in other domestic
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