Initially, it seemed contradictory that an unmarried person should apply for benefits which were prescribed as available only to married persons. However, my own cherished spouse, who has some expertise in these matters, made an observation which gave me pause. A person who lives with another person who has an income stands to be excluded from means-tested benefits by reason of that partner’s income. The absence of a formal marriage, therefore, does not prevent the state from treating persons as married for the purpose of reducing or excluding benefit but, at the same time, that absence enables the state to refuse benefit upon the death of one of the partners.
This brought to mind a recent case in my own practice in which the survivor of a very lengthy, much-blessed and widely-respected partnership which, again, had not been subject to a formal marriage, incurred an inheritance tax bill in excess of £20,000 for the simple reason that no formal marriage had taken place. The state benefited, and my client lost £20,000-plus simply because the couple had chosen to make their own commitments to each other without the statutory process of marriage. Could the individuals concerned in either of these cases have been expected to understand technical requirements of tax and benefits legislation when they made their decisions not to undertake the statutory formalities of marriage? Clearly there was marriage in both cases, in the true if not statutory meaning of the word.
Now, these may simply be individual, hard cases which could be resolved by tweaking relevant regulations. On the other hand, I wonder whether they are symptomatic of a wider, deeper malaise. The common law of Scotland has been widely overtaken by statutes composed by politicians elected to parliament, whether Westminster or Edinburgh, on the assumption that what parliament says becomes the law of the land. That assumption is, however, clearly not correct. The so-called supremacy of parliament is a doctrine which has never been accepted in Scots law and the final decision as to what may be the law of the land is a matter for judicial rather than parliamentary determination.
My own particular bugbear in this context is the determination of the Scottish Parliament to dilute and therefore potentially replace that irritating common law office of law agent or solicitor with the much more manageable, statutory Licensed Legal Services Provider whose powers, privileges and activities can be kept firmly within the control of the legislature by virtue of that license. Perhaps state-licensed lawyers would not have made all that fuss about the now ill-fated Offensive Behaviour at Football etc Act 2012 – or “mince” as it was once described in Court.
However, back in the context of benefit provision, the concept of common law marriage, valid without statutory process, has now been abolished in Scotland and marriage has become a document-based formality which makes the management of taxes and benefits much simpler. At the same time, this inflicts upon those persons who have declined the statutory process and made commitments in their own way, severe statutory penalties which couldn’t reasonably have been known or understood at the time of the making of those commitments.
A balance has to be struck between the right on the one hand of the state to make rules and regulations which facilitate the administration of a fair and just system of taxation and benefits and the freedom on the other hand of individuals to make their own choices as to how they will lead their personal and family lives.
This is not to harken back to the restoration of common law marriage in Scotland. It is quite likely neither of the cases referred to above would have satisfied the requirements for Scots common law marriage. New days bring new problems, which need new solutions. This is rather a call upon the tax and benefit authorities to apply that overarching principle of fairness and justice in their rules and regulations. It is also a forecast that if they do not, the courts are likely to make judicial determinations which do apply that principle.
Michael Sheridan is Secretary of the Scottish Law Agents Society: www.scottishlawagents.org/