Aspects of family law

Commissioner

Kate Dowdalls QC

Team members

Lorraine Stirling, Project Manager
Victoria Hayward, 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 QC as lead Commissioner in July 2018.

The consultation period, following publication of our Discussion Paper on Cohabitation on 26 February 2020 ends on 31 May 2020. The family law team has had to rethink how to engage with interested parties safely and to best effect during the consultation period, given the restrictions in place as a result of the coronavirus pandemic. We have decided to postpone a number of planned events at which we intended to talk about the project, listen to stakeholders’ views and respond to any questions. We hope to be able to hold these events in some form soon and we are working out the best way to do this.

In the meantime however, Kate has recorded a brief talk in which she introduces the Discussion Paper on Cohabitation. You can access this video here.

The team is very happy to answer any questions that you might have on our Discussion Paper. Please email lorraine.stirling@scotlawcom.gov.uk or Kate.dowdalls@scotlawcom.gov.uk with any questions you may have.

Alternatively, we are happy to hold a zoom, or skype conference with anyone who might have wanted a meeting with us. Again, please contact us on either of the email addresses above to arrange.

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, the first of which involves 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 carried out extensive informal consultation with stakeholders including legal practitioners, sheriffs, academics, and individuals and organisations outwith the legal profession in order to seek as many views and perspectives on the law relating to cohabitation as possible. We established an Advisory Group, which met in May and September 2019 assist us as we worked on preparing our Discussion Paper on Cohabitation. We are grateful to the members of the Group for their participation in the project to date.

Our Discussion Paper on Cohabitation was published on 26 February 2020. See also our summary and news release.  In it, the following issues, upon which consultees’ views are sought, are discussed:

  • Should there be separate regimes for financial provision for separating spouses and cohabitants?
  • How should “cohabitant” be defined?
  • Should the language of sections 26 and 27 be updated?
  • What is the purpose of an award for financial provision on cessation of cohabitation 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 take account of cohabitation agreements in reaching decisions on applications by former cohabitants for financial provision?
  • 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?
  • How the remedy of unjustified enrichment interacts with claims under section 28.

The consultation period will last until 31 May 2020. We welcome comments and responses from anyone with an interest in this area of law. In particular, we are keen to hear from cohabitants and their advisors.  Our response form can be downloaded here.  Following the consultation process, we hope to issue a report on the law relating to cohabitants in early 2021.

On completion of the first phase of the project, we will consider what 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.

Contact

If you require further information about this project, or if there are matters you wish to raise on the topic, please email: info@scotlawcom.gov.uk.