New guidance on legal rights of cohabiting couples is long overdue - Tom Quail

Many in the Scottish legal profession have welcomed new guidance on the legal rights of cohabiting couples in Scotland which, among a range of updates to the current law, could entitle unmarried partners to financial support in the event of separation.

The recommendations in the Scottish Law Commission’s recent report will seek to simplify the existing law while offering a broader range of outcomes for unmarried couples whose relationships break down.

The report offers a series of suggestions that I believe will improve the law and bring legislation more in line with the way modern families are living.

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I think there are a number of key takeaways from the Commission’s report.

Tom Quail is Head of family law at Wright, Johnston & Mackenzie LLPTom Quail is Head of family law at Wright, Johnston & Mackenzie LLP
Tom Quail is Head of family law at Wright, Johnston & Mackenzie LLP

The first is that the parties in an unmarried, cohabiting couple could be required to provide short-term financial support for former partners, and that a clearer formula is required for judges to apply to calculate levels of financial support.

The report takes in recent trends around marriage and relationships by recommending that being a “cohabitant” does not rely on comparison with married couples or civil partners, which should make the law regarding such arrangements more inclusive as a whole.

The last time changes were made to this area of the law was the Family Law (Scotland) Act 2006. In recent years, the laws around unmarried, cohabiting couples, have been criticised for being outdated, overly complicated, and unrepresentative of the growing numbers of couples in Scotland who choose not to get married - so the report and its recommendations are very welcome.

From 1996 to 2021, the number of people in the UK in cohabiting couples increased from 1.6 million to 3.6 million, now making up more than one-fifth (22 per cent) of couples who live together. This number is expected to continue to rise, so it’s important to have laws in place which represent this growing section of the population.

Now the report has been published, the recommendations will go to the Scottish Parliament before the Bill is updated, which could potentially happen in 2025.

In some countries such as Australia and New Zealand, couples who are cohabitants largely experience the same legal rights as married couples if they have lived together for a certain period of time, and many expected the Scottish Law Commission to advise a similar approach.

However, there are plenty of couples who make the choice not to marry, and it’s important for the law to recognise their decision to do so as much as those who choose to get married. If the law makes the rights the same for unmarried couples, they are effectively eliminating those couples’ choices to be unmarried.

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In Scotland, a cohabitation agreement is still the clearest way to set out financial arrangements should cohabitation break down. It deals with the clarification of property ownership and is a mechanism for the division of assets. This legally binding document is still recommended as we wait for the Scottish Law Commission’s report to update any existing law.

In my 20+ years as a family law specialist, many things have significantly changed, and I expect it will continue to evolve for many years to come. A system that changes and adapts to reflect modern attitudes is vital and I believe these findings are a positive step forward for family law as a whole.

Tom Quail is Head of family law at Wright, Johnston & Mackenzie LLP



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