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Cohabitation Laws Criticised in Review of Scots Family Law

The Scottish Government recently published a review of Scots family law. The study considered the way the Family Law (Scotland) Act 2006 has worked in practice in the ten years since it was introduced.

The Family Law (Scotland) Act 2006 is one of the major pieces of family law legislation. It introduced rights for cohabitants and reformed the rights of unmarried fathers in Scotland. When the act was passed into law it was commended for modernising Scots family law and recognising the way the family dynamics have changed over time. However, many solicitors and stakeholder groups have criticised the Act for being unclear, poorly drafted and not going far enough to reflect the realities of modern family life.

The review was led by the Convener of the Justice Committee, Christine Grahame MSP, and heard evidence from a broad range of interested parties, including members of the legal profession, politicians and pressure groups such as Families Need Fathers.

Christine Grahame said: “By necessity, this has been a brief examination of the Family Law (Scotland) Act 2006 and it offers a snapshot of stakeholders’ opinions ten years on.

“This short report is, in effect, a report to our successors on the next Justice Committee. It sets out views on aspects of family law covered in the 2006 Act they may wish to consider in more depth in the next session.”

Cohabitation Rights

The report centred on cohabitant’s rights. The Act defines a cohabitant as a couple who live together as if they are married or in a civil partnership. The Act outlines the rules surrounding cohabitant couple separation. It makes it possible for one partner to make a financial claim against the other and make a claim for the cost of childcare.

However, the drafting of the Act has been criticised as unclear, and many separating couples are unsure what their rights are and how much they would be entitled to.

The Act also made it possible for cohabitants to make a claim upon their partner’s estate if they died intestate. This provision has a strict one-year time limit and anyone wishing to pursue a claim does so with no guarantee of success.

On cohabitation rights, Christine Grahame said, “Stakeholders welcome the new rights for cohabitants enshrined in the 2006 Act. They have helped family law in Scotland adapt to modern times.

“However, we heard concerns that the legislation is insufficiently clear and that lawyers sometimes struggle to tell separating couples what they can actually expect from the provisions.”

Given the lack of legal clarity surrounding where each unmarried partner stands after separation, many legal practitioners recommend that cohabitants consider a cohabitation agreement. This is a mutually agreed contract that expresses what will happen and who will get what if the couple separate in the future. This can help to avoid fighting over property and childcare and can help a separating couple move on with their life quicker.

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Contact Family Law Inverness for expert divorce, cohabitation and child law advice. You can get in touch by completing our enquiry form.

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