Aspects of family law
Kate Dowdalls QC
Lorraine Stirling, Project Manager
Victoria Hayward, Legal Assistant
**** HAVE YOUR SAY *** We are keen to hear from family law practitioners about their experiences, and those of their clients, of claims under the cohabitation provisions in the 2006 Act. We would be grateful if practitioners would take time to complete the questionnaire attached here and return responses by email to email@example.com by 30 September 2019.
A review of aspects of family law is being undertaken by the Commission’s family law team, following the appointment of Kate Dowdalls QC as lead Commissioner in July 2018. 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.
The family law team completed a scoping exercise for the project, which was approved by Commissioners in February 2019. We are approaching the project in phases, the first of which will involve a review of the law relating to cohabitants as set out in sections 25 - 28 of the Family Law (Scotland) Act 2006.
The team has been consulting extensively with stakeholders including legal practitioners, academics, and individuals and organisations outwith the legal profession (including equalities organisations and a sociologist) in relation to this review in order to seek as many views and perspectives on this area of law as possible. In addition, we established an Advisory Group, which had its first meeting on 16 May 2019. We are grateful to the members of the Group for a very interesting, helpful and thought provoking discussion. The Advisory Group's second meeting is due to take place on 26 September 2019.
The Advisory Group will assist the team with its work towards developing a Discussion Paper. That work will include comparison with regimes for cohabitants in other jurisdictions. The following issues, in particular, will be considered:
- Should there be separate regimes for financial provision for separating spouses and cohabitants?
- Whether the definition of cohabitant is apt in the 21st Century.
- What purpose is served by sections 26 and 27?
- What is the purpose of an award under section 28(2)(a) or (b)?
- Should a wider range of remedies be available?
- Is the definition of child in section 28(2)(b) too narrow?
- Does the test in section 28(3)-(6), meet the policy aims of certainty, fairness and clarity? If not, how might it be improved?
- Should resources be taken into account?
- Should provision be made to set aside or vary cohabitation agreements in certain circumstances?
- Is the time limit for claims under section 28 too short? If so, should it be extended or should there be judicial discretion to allow late claims?
- Should the remedy of unjustified enrichment be available to former cohabitants (in addition to / instead of) a claim under section 28?
The family law team also prepared a questionnaire which has been circulated by the Family Law Association to its members. We hope that responses will aid our understanding of practitioners’ experiences of working with sections 25 – 28 of the 2006 Act and of their clients’ awareness of the current law in this area.
We expect to publish a Discussion Paper on this phase of the project at the beginning of 2020 and, following the consultation process, we hope to issue a report on the law relating to cohabitants in early 2021.
We will then consider what area of family law will be reviewed during the second phase of the project. 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 the victims of 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.
If you require further information about this project, or if there are matters you wish to raise on the topic, please email: firstname.lastname@example.org.