Aspects of family law
Kate Dowdalls KC
Lorraine Stirling, Project Manager
Laura Beattie, Legal Assistant
A review of aspects of family law is being undertaken by the Commission’s family law team, following the appointment of Kate Dowdalls KC as lead Commissioner in July 2018.
Aspects of family law project
The review of aspects of family law was announced in our Tenth Programme of Law Reform (February 2018), and we envisage that the project will be a medium-term one, expected to take 5 years to complete. We are approaching the project in phases.
Phase One - Cohabitation
The first phase of the project has focussed on a review of the law relating to claims for financial provision on breakdown of a cohabiting relationship, otherwise than by the death of one of the cohabitants (as set out in sections 25 - 28 of the Family Law (Scotland) Act 2006).
We published our Report on Cohabitation together with a draft Bill implementing our reforms in this area on 2 November 2022.
Following publication of our Discussion Paper on Cohabitation (26 February 2022), which sought views on possible reform of the law, we consulted extensively with stakeholders, equality groups and our Advisory Group. The family law team is grateful to all those who responded to the Discussion Paper (these responses can be accessed here), and shared their views with us; their contributions have helped us reach our conclusions and make the recommendations for reform set out in our Report.
We are also grateful to all of those who took part in in-person and online events with us during this phase of the aspects of family law project, including during periods of lockdown due to the Covid-19 pandemic. We have enjoyed meeting many lawyers and non-lawyers from all over Scotland, and further afield, and hearing their views on possible reform.
The Report makes the following main recommendations for reform: modernisation of the definition of “cohabitant” and the language of sections 26 and 27 of the 2006 Act; providing guidance to the court on how to determine a claim for financial provision, by requiring the court to make orders that are justified on the application of guiding principles and reasonable having regard to the resources of the cohabitants; widening the range of orders available to the court to include property transfer orders and orders for payment over a maximum period of six months for the relief of serious financial hardship; allowing the court to vary or set aside an agreement between cohabitants if it was not fair and reasonable when entered into; allowing the court to accept a late claim on special cause shown (subject to a two year deadline); and allowing cohabitants to agree to extend the one year time limit for making a claim to allow them to negotiate with a view to settling their claims for financial provision.
These reforms, if implemented, will result in a clearer, more principled and more modern framework for determining claims, thereby encouraging fairer outcomes for separating cohabitants.
A fuller outline of the contents of the Report may be found in the Executive Summary. Please also see our Business and Regulatory Impact Assessment.
The family law team was pleased to receive the following Scottish Government response to our Report: https://www.scotlawcom.gov.uk/index.php/download_file/view/2437/1501/141/.
Now that phase one of the aspects of family law project is complete, we are considering which area of family law will be reviewed during the second phase. The team has in mind a review of civil remedies for domestic abuse, which would consider, among other matters, whether the existing legislative framework is adequate and sufficient to provide victims of domestic abuse and violence with prompt and effective protection. A decision as to the content of the second phase of the project will be taken at a later date.