IT is a challenge as old as the law itself: how does legislation keep pace with social change?
In many cases, the answer is that it takes a while, and family law is a good example.
The term ‘bidie-in’ is familiar in Scotland, but the number of couples living together without being married has risen significantly in recent decades. As a result, relationship breakdowns among cohabiting couples have also increased. There are now as many co-hab breakdowns as divorces.
There was an attempt to deal with the issue in the Family Law (Scotland) Act 2006 but the framework introduced has proved challenging. The starting-point of any claim is nothing and trying to assess a claim can involve a detailed dissection of a couple’s relationship at great emotional and financial cost.
Claims based on advantage and disadvantage and individuals’ conflicting notions of what is equitable are hard to predict. In failing to provide a clear structure for claims, the law has not kept pace with social change.
This creates problems, especially when added to false perceptions. Co-habitees don’t tend to think deeply about their rights if a relationship breaks down; many just won’t consider relationship failure, especially in those happy early stages. Those who do think about it fall broadly into two categories – they think they have the same rights as married couples (they don’t) or no rights whatsoever if a relationship breaks down (they do).
Any claim resulting from a co-hab breakdown must be lodged within a year of separation. It is often hard to pinpoint exactly when a relationship actually broke down; a cohabiting couple might have separated but still be living in the same house and as a result potential claims are time-barred where legal advice is sought too late.
In a divorce case, the starting-point for a claim is 50 per cent of the total ‘pot’ but this doesn’t apply to co-hab cases. I often hear clients say if they had stayed long enough in a relationship, their assets would ‘become’ shared. The notion of the common-law husband and wife is alive and well.
I quash these misconceptions as early as possible with new clients. Educating people about the rights (or lack of rights) of co-habitees is very important. During the process of developing the 2006 Act, I gave evidence and called for more certainty. The Act failed to provide that, yet clarity and certainty are exactly what clients want at a time when feelings are running high.
This lack of clarity has led to many interminable arguments about who brought what assets into the relationship, who paid for what, what decisions would have been taken if there had been no relationship, along with the impact of one partner giving up their job (often to raise children) and what this means for future earnings. This is a very subjective area where claims are based around economic advantage and disadvantage.
But what is economic advantage or disadvantage? Would you have stayed in the same house (or not)? Would the increase in value in your original house be more or less than you now have? Does the fact that you had a house, now have to sell one and are liable for costs and charges constitute a ‘disadvantage’?
The potential arguments are endless. It’s complex and hard to unpick; all sorts of decisions are made during a relationship for very different reasons. When you think you have all the information, one party remembers something else and throws that in.
The Scottish Law Commission has now announced its Tenth Programme of Law Reform and will consider aspects of family law, including financial provision for cohabitants whose relationships break down. The news is welcome and it can only be hoped that in due course we will be able to move forward in a new framework with more certainty.
So how can we do things better in the immediate future? Education has to play a part, particularly in making people aware that if their cohabitation breaks down, they must seek advice early or face losing their claim.
Getting married is a life event. Choosing to live together is not an event as such. It can happen gradually, with a couple living in different homes but spending more time together over a long period before moving in together. If people knew more about the law in this area, I think many would live their lives slightly differently and think more about the implications and the potential challenges ahead.
Shona Smith is a partner and head of family law, Balfour+Manson