A Scottish Government Consultation on Family Law - draft Impact Assessments

Potential reform of cohabitants’ rights to financial provision on separation - draft Child Rights and Wellbeing Impact Assessment

Introduction

Brief Summary

The draft CRWIA relates to a decision of a strategic nature relating to the rights and wellbeing of children.

The Scottish Government is consulting on whether to introduce legislation in the Scottish Parliament to implement the Scottish Law Commission’s Report on Cohabitation in order to improve the arrangements for cohabitants’ rights on separation. This draft CRWIA is intended to support the consultation. We would publish a finalised CRWIA and a Statement of Compatibility if legislation is introduced.

Name the proposal, and describe its overall aims and intended purpose.

The Scottish Government is consulting on recommendations from the Scottish Law Commission (the SLC) on reform of the provisions in the Family Law (Scotland) Act 2006 (the 2006 Act) permitting a former cohabitant to apply to the court for financial provision after they separate from their partner.

Under section 25 of the 2006 Act, a cohabitant is a member of a couple who are or were living together as if they were spouses.

Under section 28 of the 2006 Act, a former cohabitant can apply to the court for an order for financial provision (payment of money) not later than one year after the day on which they ceased to cohabit with their partner otherwise than by reason of death.

Alternatively, a former cohabiting couple might be able reach an agreement without involving the court. However, because of the time limit for raising a claim with the court, one of the parties might need to raise a court action within the time limit initially for the purposes of protecting their interests and then may try to reach an agreement with their former partner.

The SLC made their recommendations in their 2022 Report on Cohabitation (the Report). The Report includes a draft Bill. The SLC notes in its news release that the existing arrangements have been criticised as:

“…being out of date, unclear and overly complicated. In particular, criticism has focused on the definition of a “cohabitant”; the purpose of awards for financial provision on breakdown of a relationship; the test for awards; the time limit for applications, and the limited remedies available to cohabitants who claim financial provision when their relationships end”.

The SLC’s Lead Commissioner for the Report has said that that the:

“…recommended reforms are aimed at achieving fairer outcomes for cohabitants when their relationships break down, by clarifying and simplifying the law as well as providing a broader range of remedies.”

The SLC’s key recommendations for change include:

• a definition of “cohabitant” that does not compare a cohabiting couple with people who are married;
• changes to the test for the court to apply including guiding principles aimed at achieving fair outcomes for both parties;
• new remedies the court can use, including orders for transfer of property and for short term payments for relief of serious financial hardship as well as making an order or order for one party to pay money to the other;
• a requirement for the court to take account of any agreement between former cohabitants when deciding an application;
• retaining the existing one-year time limit for claims, and introducing some flexibility so that late claims may go ahead on special cause shown;
• allowing the couple to agree to extend the time limit so that they can try to reach an agreement;
• an absolute time limit for a claim of two years from the date the cohabitation ends, after which no claim will be possible.

You can read a summary of the SLC’s recommendations: Executive Summary - Aspects of Family Law - Cohabitation (Report No. 261) (scotlawcom.gov.uk)

Implementing the SLC’s recommendations would require a Bill in the Scottish Parliament.

This draft CRIWA has been prepared to help inform the Scottish Government’s consultation and evidence of the key considerations and impacts for children and young people.

This may help potential respondents to the consultation understand some of the key points to make the information gathered through the consultation responses as extensive as possible. Responses will assist with the Scottish Governments decision on whether or not to take the SLC’s recommendations forward in a Bill.

The SLC’s Report is not about the existing arrangements for a court to make an order in relation to parental responsibilities and rights in relation to a child of a cohabiting couple.

Start date of proposal’s development: 7 December 2023

Start date of CRWIA process: 6 February 2024

With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024, which aspects of the proposal are relevant to children’s rights?

The current arrangements in the 2006 Act are capable, in principle, of directly affecting 16 and 17 year olds who have separated from a cohabiting partner.

The SLC’s proposed definition of a cohabitant would not change this, and 16 or 17 year old applicants who did seek an order for financial provision are treated as adults under the existing arrangements and also for the purposes of the SLC recommendations.

Implementing the SLC’s recommendations overall may also indirectly affect children, since improving outcomes for an applicant seeking an order or orders may improve the circumstances of any dependent children of a cohabiting couple.

One of the orders that the court can make under section 28 is an order requiring the other cohabitant “to pay such amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents”.

However, this type of order is not available in respect of a child who is or was accepted by the cohabitants as a child of the family.

One of the SLC’s recommendations is that there should be no such difference in treatment. This could make a positive impact for children accepted by cohabitants as a child of the family by allowing more orders to be sought in such cases.

“Child” in the context of the 2006 Act arrangements means a child under 16 (see section 28(2)). The SLC do not propose to change this.

We will consider the outcomes of the consultation before we decide on next steps, and we would publish an updated full CRWIA and a Statement of Compatibility with any legislation.

However, at this stage and subject to the consultation outcomes, based on the available evidence, we think that the following Articles are relevant to our future decisions:

• Article 3 (Best interests of the child) since clarifying and improving the rights of cohabitants on separation on the basis of the SLC recommendations seems likely to be in the interests of parties to a potential action under section 28 who are under 18, or in the interests of any dependent children of a separate cohabiting couple.
• Article 27 (Adequate standard of living) since improvements to the arrangements for those former cohabitants who are seeking financial provision following separation could, at least in theory, directly benefit a former cohabitant aged 16 or 17, or more likely, would indirectly financially benefit former cohabitants’ dependent children.

Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal.

This section and the other parts of this CRWIA will be updated once we have analysed the responses to the consultation, considered any further evidence identified, and the Scottish Ministers have decided on next steps.

We will publish an updated and completed CRWIA and a Statement of Compatibility along with any legislation introduced to the Scottish Parliament.

In the meantime we have summarised below the available data and evidence in advance of the consultation. This is intended to help those taking part in the consultation with understanding what the current evidence suggests and why this proposal is being explored.

According to the results of Scotland’s Census 2022, there were 292,250 cohabiting couple households in 2022. This is an increase of 25.2% on the position in the 2011 Scottish Census. Just under 36% of cohabiting couple households (103,972) had dependent children: see Scotland’s Census 2022- National Records of Scotland- Topics- Demography and Migration- Table UV116 - Household Type.

We are aware of research indicating that, following divorce, women can experience disproportionate declines in their income and standard of living and are at increased risk of experiencing poverty. For example, see:

• Leopold, T. Gender Differences in the Consequences of Divorce: A Study of Multiple Outcomes. Demography 55, 769–797 (2018).
• de Vaus, D., Gray, M., Qu, L., & Stanton, D. The economic consequences of divorce in six OECD countries (Research Report No. 31). Melbourne: Australian Institute of Family Studies (2015).

Research also suggests that household income also falls for women who separate from their partners, particularly mothers. We identified:

• Bewer, M and Nandi, A ‘Partnership dissolution: how does it affect income, employment and well-being?’ Institute for Social & Economic Research, (September 2014)
• Fisher, H and Low, H Financial implications of relationship breakdown: does marriage matter?’ Institute for Fiscal Studies, October 2012.

Improvements to the arrangements for cohabitants seeking financial provision following separation could directly benefit former cohabitants who are female and aged 16 or 17 and indirectly benefit their dependent children.

We do not have accurate data on the number of court actions initiated under section 28 of the 2006 Act nor about the ages of the parties involved or whether they had dependent children. The Civil Justice Statistics in Scotland 2022-2023 suggest that there could have been up to 90 cases initiated in the sheriff courts which may have involved a request for an order for financial provision under section 28.

Table A6 (Count of Craves in Family-other proceedings) in the Main Tables accompanying the publication indicate that there were 52 Family-other proceedings initiated where “payment of a capital sum” was sought, and 36 cases initiated seeking “payment of money”.

It seems unlikely that such court actions will involve a cohabitant aged 16 or 17, but there will be cases where the former cohabiting couple involved have dependent children.

There will be some disputes between former cohabitants which do not reach the courts for example, because the parties have reached an agreement on financial provision.

The SLC has set out the potential benefits of implementing their recommendations in a Business and Regulatory Impact Assessment (BRIA) published with their Report.

The SLC suggests that their recommended reforms would bring increased certainty and clarity in the law and would mean that lawyers could better advise their clients on the likely outcomes of a claim if it reached the court.

This could help ensure disputes between former cohabitants would be less likely to reach the courts. That would not only reduce courts costs and court time, but potentially also reduce the expense, anxiety and stress to former cohabitants and their families.

The SLC’s Report followed consideration of responses to a Discussion Paper. Respondents to that consultation are set out in Appendix D of the SLC Report.

Further to the evidence described at ‘3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed

Not applicable at this stage.

Analysis of Evidence

Not applicable at this stage.

What changes (if any) have been made to the proposal as a result of this assessment?

Not applicable at this stage.

Conclusion

As a result of the evidence gathered and analysed against all UNCRC requirements, what is the potential overall impact of this proposal on children’s rights?

Not applicable at this stage. The Scottish Government will reach decisions on bringing forward a Bill after the consultation responses have been analysed and considered.

Children’s Rights

Positive

Negative

Neutral

No impact

If you have identified a positive impact on children’s rights, please describe below how the proposal will protect, respect, and fulfil children’s rights in Scotland.

Not applicable at this stage. The Scottish Government will reach decisions on bringing forward a Bill after the consultation responses have been analysed and considered.

If a negative impact has been identified, please describe below. Is there a risk this could potentially amount to an incompatibility? (Guidance Section 3.2, page 25).

Not applicable at this stage. The Scottish Government will reach decisions on bringing forward a Bill after the consultation responses have been analysed and considered.

Mitigation Record

What options have been considered to modify the proposal in order to mitigate negative impact or potential incompatibility issues?

Not applicable at this stage

Issue or risk Identified per article/ Optional Protocol

Not applicable at this stage

Action Taken/ To Be Taken

Not applicable at this stage.

Date action to be taken or was taken

Not applicable at this stage.

As a result of the evidence gathered and analysed against all wellbeing indicators, will the proposal contribute to the wellbeing of children and young people in Scotland?

Not applicable at this stage

Yes

No

If yes, please provide and explanation below:

How will you communicate to children and young people the impact that the proposal will have on their rights?

Not applicable at this stage.

Post Assessment Review and sign-off

Planning for the review of impact on children’s rights and wellbeing.

Not applicable at this stage.

Sign off .

Not applicable at this stage. This will be completed after this consultation and views have been obtained from consultees

Policy Lead Signature & Date of Sign Off:

Deputy Director Signature & Date of Sign Off:

Date CRWIA team first contacted: 16 July 2024