SCOTLAND Trends and Developments Contributed by: Jenny Jarman-Williams, Turcan Connell
The Ongoing Reform of Family Law in Scotland Current developments in the field of family law in Scotland centre around potential reform of the law with regard to cohabitation, child law, and domestic abuse. There is less focus, for the moment at least, on updates to the court pro - cesses and procedures and on the expansion of non-court dispute resolution. Cohabitation In 2006, the Scottish Parliament introduced rights for cohabitants. Cohabitants who are domiciled or habitually resident in Scotland are now able to make a financial claim against the other on the breakdown of the relationship, or when a partner dies without a will. Eighteen years on, reform is on the horizon, following the publication of a lengthy report by the Scottish Law Commission and an accompanying Draft Bill in November 2022. Many would say the original legislation has not fulfilled its potential. Scotland’s current cohabi - tation laws have been criticised for their com - plexity and vagueness, with courts given sig - nificant discretionary power without a guiding framework. This has made it difficult for legal advisers to predict outcomes for clients and, arguably, led to some unjust outcomes. They have recommended that change should be made and proposed wide-ranging reform. The Scottish government’s initial response stated: “The report is very thorough, impressive and readable. It provides a sound basis for reforming the law in this area.” It went on to say it intends to consult on the Scottish Law Commission’s recommendations. The recommendations, if adopted, would bring extensive changes aimed at giving the court a wider range of powers and providing greater clarity and predictability as to outcome.
The key recommendations and proposed chang - es are as follows. • Updated definition of “cohabitant” – the Scottish Law Commission advocates mod - ernising and redefining “cohabitant” to better represent contemporary relationships. At the moment, cohabitants are defined as a couple who live together as though married. Under the proposed change, a cohabitant would be defined as a person in an enduring family relationship with another, focusing on the relationship’s characteristics rather than likening it to marriage. Factors such as co- residence, financial interdependence, child- bearing, and the relationship’s length would guide courts in making determinations about cohabitant status. • Guiding principles for financial awards – to address the vagueness of the law in relation to financial claims, the report suggests a prin - cipled framework for financial provision. The proposed new test requires the court to make such orders as are justified on the application of any or all of a set of guiding principles and reasonable having regard to the resources of the cohabitants. The guiding principles are an almost exact replica of those applicable in a divorce and so are familiar to all Scottish fam - ily lawyers and judges. They are: (a) any economic advantage derived by one cohabitant from the contributions of the other should be fairly distributed between the cohabitants; (b) any economic disadvantage suffered by a cohabitant in the interests of the other cohabitant or of a relevant child should be fairly compensated; (c) where a cohabitant seems likely to suf - fer serious financial hardship as a result of the cohabitation having ended, such financial provision should be awarded as
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