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Appeal for cohabitant claim experiences to aid law reform

12 August 2019

An appeal has gone out to family law practitioners to share experiences, and those of their clients, of claims under the cohabitation provisions in the Family Law (Scotland) Act 2006.

The Scottish Law Commission has published a questionnaire on the subject as part of its project to review aspects of family law, begun earlier this year. Cohabitants' rights are the first subject to be considered in what is likely to be a five year project under lead commissioner Kate Dowdalls QC.

An advisory group is assisting the Commission's Family Law team with work towards developing a discussion paper. That work will include comparison with regimes for cohabitants in other jurisdictions. The following issues, in particular, will be considered:

  • Should there be separate regimes for financial provision for separating spouses and cohabitants?
  • Is the definition of cohabitant apt in the 21st century?
  • What purpose is served by ss 26 and 27 of the Act (rights in certain household goods, and certain money and property)?
  • What is the purpose of an award under s 28(2)(a) or (b), which provides for financial provision on separation?
  • Should a wider range of remedies be available?
  • Is the definition of "child" in s 28(2)(b) too narrow?
  • Does the test in s 28(3)-(6) – matters to be taken into account – meet the policy aims of certainty, fairness and clarity? If not, how might it be improved?
  • Should resources be taken into account?
  • Should provision be made to set aside or vary cohabitation agreements in certain circumstances?
  • Is the time limit for claims under s 28 too short? If so, should it be extended or should there be judicial discretion to allow late claims?
  • Should the remedy of unjustified enrichment be available to former cohabitants (in addition to/instead of) a claim under s 28?

The Commission is keen to hear from family law practitioners about their experiences, and those of their clients, of claims under the cohabitation provisions. Click here for further information and to access the questionnaire. Responses should be emailed to by 30 September 2019.

The Commission expects to publish a discussion paper on this phase of the project at the beginning of 2020 and, following the consultation process, hopes to issue a report in early 2021.


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