SCOTLAND Trends and Developments Contributed by: Jenny Jarman-Williams, Turcan Connell
is reasonable for the short-term relief of that hardship; and (d) the economic responsibility for caring for a relevant child (that is, a child of whom the cohabitants are parents, or who has been accepted by them as a child of the family) after the end of the cohabita - tion should be shared fairly between the cohabitants. The Scottish Law Commission has also recom - mended that assistance in applying the guid - ing principles should be provided, by inclusion of lists of factors relevant to the application of each guiding principle. Those factors are again very like those from the divorce legislation and include: (a) the terms of any agreement between the cohabitants; (b) whether either cohabitant’s behaviour, including abusive behaviour, has resulted in economic advantage or disadvantage or affected the resources of either cohab - itant; and (c) all the other circumstances of the case. • Expansion of court orders – one of the key criticisms levelled at the Scottish legislation is that the orders available to the court are too limited. The report recommends diversi - fying court orders beyond simple monetary awards to include property transfer orders and periodic payment orders for short-term relief. Courts would also gain powers to address occupancy rights in shared homes, valuation and sale of property, and incidentals related to financial provision. This extended range allows courts to more flexibly support cohabitants during transitional periods after separation. • Time limit flexibility for financial claims – the report is critical of the existing rigid one-year
limit for cohabitation-related financial claims and proposes courts should have discre - tion to accept a late claim on special cause shown within a further one-year period. This would be subject to a two-year absolute deadline. It also recommended that provision be introduced allowing cohabitants to agree, in writing, to extend the one-year time limit, so as to enable them to negotiate with a view to settling their claims for financial provi - sion. Where such an agreement is entered into, the time limit for making a claim would be extended to 18 months from the date of cessation of cohabitation, but the two-year absolute deadline would continue to apply. This adjustment is intended to allow time for negotiation and mediation, providing couples with the opportunity to resolve disputes with - out immediately resorting to legal action. • Recognition of cohabitation agreements – as things stand, there is no special provision under which to challenge an unfair cohabita - tion agreement. The contract will stand unless a party can meet one of the common law grounds of challenge (ie, error, fear, force, or fraud). There is a recommendation that a new provision should be introduced, allowing the court to vary or set aside an agreement (or any term of an agreement) between cohabit - ants if the agreement was not fair and rea - sonable at the time it was entered into. This would bring cohabitation agreements in line with prenuptial and postnuptial agreements. While the Scottish government has not yet implemented these reforms, the report and draft Bill lay a foundation for potentially significant changes in cohabitation law. Those changes would bring it closer to the existing provision for financial provision on divorce, without mirror - ing it. If (or when) these changes proceed, most agree they would mark an important improve -
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