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Cohabitation Final Report LEGAL PRACTITIONERS’ PERSPECTIVES ON THE COHABITATION PROVISIONS OF THE FAMILY LAW (SCOTLAND) ACT 2006 October 2010 Fran Wasoff Jo Miles Enid Mordaunt Centre for Research on Trinity College Centre for Research on Families and Relationships University of Cambridge Families and Relationships The University of Edinburgh The University of Edinburgh crfr centre for research on families and relationships Project funded by the Nuffield Foundation The Nuffield Foundation is an endowed charitable trust that aims to improve social well-being in the widest sense. It funds research and innovation in education and social policy and also works to build capacity in education, science and social science research. The Nuffield Foundation has funded this project, but the views expressed are those of the authors and not necessarily those of the Foundation. More information is available at www.nuffieldfoundation.org i TABLE OF CONTENTS List of Tables .................................................................................................................. iii Acknowledgements ........................................................................................................iv Part 1. Background: setting the scene............................................................................ 1 Chapter 1. Introduction ....................................................................................... 1 Chapter 2. The Social Context of Cohabitation in Scotland................................ 4 Chapter 3. The Legal and Policy Context......................................................... 16 Chapter 4. The Research Context: Methodology ............................................. 36 Part 2. Research Findings ............................................................................................ 47 Chapter 5. Findings from the Online Questionnaire ......................................... 47 Chapter 6. Findings from the In-depth Interviews............................................. 59 Chapter 7. Findings from the Vignettes .......................................................... 100 Part 3: Future Directions?........................................................................................... 123 Chapter 8. Where Next for Scotland?............................................................. 123 Chapter 9. Implications for England and Wales?............................................ 145 References ................................................................................................................. 162 Appendices................................................................................................................. 166 Appendix 1. Research instruments................................................................. 166 Appendix 2. Family Law (Scotland) Act 2006, sections 25 to 29.................... 176 Appendix 3. Family Law (Scotland) Act 1985, sections 9 and 11................... 181 Appendix 4. Reported cases involving sections 25 to 29 of the 2006 Act ...... 183 ii LIST OF TABLES Table 2.1. Cohabitation and Marriage by Age (column percents) 2007-08.................... 8 Table 2.2. Cohabitation and Marriage by Age (row percents) 2007-08.......................... 9 Table 2.3. Housing tenure by whether cohabiting or married, (column percents) 2005- 06 ............................................................................................................................ 9 Table 2.4. Property type by whether individual is cohabiting or married (column percents), 2005-2006 ............................................................................................ 10 Table 2.5. Total Net Annual Income by whether cohabiting or married, 2005-06 ........ 11 Table 2.6. Household type by whether cohabiting or married (column percents) 2007- 08 .......................................................................................................................... 12 Table 2.7. Household type by whether cohabiting or married (column percents) 2005- 06, adults aged 25 to 34........................................................................................ 13 Table 2.8. Religion by whether married or cohabiting (column percents), 2005/06 ..... 13 Table 5.1. Case numbers involving ss 25-29 of the 2006 Act ...................................... 48 Table 5.2. Last case separation or succession by length of cohabitation .................... 51 Table 5.3. Solicitors’ description of the case outcome, (column percents)................... 52 Table 5.4. Solicitors’ views about what are the problem areas of the cohabitation provisions of the 2006 Act..................................................................................... 55 Table 5.5. Solicitors’ rank ordering of the most unworkable aspects of the of the cohabitation provisions of the 2006 Act................................................................. 56 Table 9.1. Comparison of main features of ss. 25-28 of the Family Law (Scotland) Act 2006, the Law Commission recommendations and Lord Lester’s Bill................. 148 iii ACKNOWLEDGEMENTS We should like to thank the following people, without whose help and encouragement our report would be the lesser: • the members of the Research Advisory Group for their advice and suggestions, providing information and supportively challenging us • the staff of the Centre for Research into Families and Relationships, the University of Edinburgh for their support and can-do attitude • the Chair and committee of the Family Law Association for the continued assistance in sending out our information to members • the Law Society of Scotland for assistance in publicising the research to members and finally to all those who gave of their time so freely in the midst of busy working days to answer our questionnaire and be interviewed. iv PART 1. BACKGROUND: SETTING THE SCENE CHAPTER 1. INTRODUCTION "The Scottish Ministers aim to provide a clearer statutory basis for recognising when a relationship is a cohabiting relationship; and a set of principles and basic rights to protect vulnerable people either on the breakdown of a relationship, or when a partner dies. The Scottish Ministers do not intend to create a new legal status for cohabitants. It is not the intention that marriage-equivalent legal rights should accrue to cohabiting couples, nor is it the intention to undermine the freedom of those who have deliberately opted out of marriage or of civil partnership. The Scottish Ministers consider it vital to balance the rights of adults to live unfettered by financial obligations towards partners against the need to protect the vulnerable. [Scottish Executive 2005a, para 65] Scotland, in common with many other Western jurisdictions, has since the 1960s experienced relatively rapid demographic change. More individuals are now living in non-traditional family forms, and – a more recent trend – many more children are being born to parents who are not married.1 How the state, and family law in particular, should respond to such increased diversity in family life can be a hotly contested political question.2 On one view, classically exemplified by a remark attributed to Napoleon, cohabitants ignore the law (of marriage) and so the law ignores them. On this “formalist” view, unless a couple comply with the form of relationship (marriage) prescribed by law, they cannot expect the law to protect their interests. Others, by contrast, are concerned that cohabiting families face many of the same practical problems as married families, and that family law should be not formalist but “functionalist”, intervening to protect whoever may be vulnerable when relationships end. Some would go as far as to assimilate the position of cohabitants and spouses.3 Others, concerned to preserve the distinctiveness of the 1 See further in chapter 2. 2 Note, for example, current debates around the recognition of marriage through the tax system, prompted by the Conservative Manifesto 2010, p 41. 3 See by way of recent example reform of Australian family law: Family Law Act 1975, as amended in 2008. See also New Zealand’s Property (Relationships) Act 1976 and Family Proceedings Act 1980, both as amended in 2002 and subsequently. 1 institution of marriage and/or the autonomy of those who have not elected to join that institution, seek a middle course.4 The Family Law (Scotland) Act 2006 introduces new financial remedies for cohabitants on relationship breakdown and on death of one partner.5 Reflecting the policy articulated in the opening quotation above, the Act does not set out to afford to cohabitants the same rights and protections in this field as divorce and succession law afford to spouses and civil partners, but instead aims to create a middle way between the protection afforded to spouses and civil partners and no protection at all. This approach is intended to recognise the various reasons why people choose to live together without formalising their relationship in marriage or civil partnership and to preserve the legal distinctiveness of those institutions, whilst also providing some measure of protection to those who are economically vulnerable at the end of cohabiting relationships,together (indirectly) with their children. Introducing some measure of financial provision in private law for cohabitants may also help reduce the burden on the public purse that may otherwise arise in supporting those experiencing economic hardship. The relevant parts of the Act having come into force in May 2006, the new law has now been in
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