Family law consultation: draft impact assessments
Draft impact assessments to support our consultation on reform of various aspects of family law in Scotland.
Potential reform of cohabitants’ rights to financial provision on separation- draft Equality Impact Assessment Record
Title of policy/ practice/ strategy/ legislation etc:
Potential reform of the rights of cohabitants upon separation under the Family Law (Scotland) Act 2006
Minister: Minister for Victims and Community Safety
Lead official: Family Law Policy Unit
Teams involved in the EQIA: Family Law Policy Unit, Justice Analytical Services, National Records of Scotland (NRS), Cultural Access & Organisations Division, Equality Mainstreaming.
Directorate: Division: Team: Directorate for Justice: Civil Law and Legal Systems: Family Law Policy Unit
Is this new policy or revision to an existing policy?
Revision to an existing policy.
Screening
Policy Aim
The Scottish Government will consult on taking forward the Scottish Law Commission’s (the SLC’s) recommendations to reform cohabitant’s rights on separation in the Family Law (Scotland) Act 2006. The Scottish Government’s initial response takes the view that the SLC’s draft Bill generally provides a sound basis on which to reform this area of law.
This is a draft (pre-consultation) EQIA Record to support consideration of the consultation, which we will update once the consultation responses are analysed and decisions on next steps are reached.
Currently, cohabitants do not have equivalent rights and protections to those who marry or enter a civil partnership. There is evidence that people often wrongly believe that after a certain period of time, cohabitants would be in a “common law marriage”.[1]
Under section 28 of the Family Law (Scotland) Act 2006 (the 2006 Act), a cohabitant can apply to a court to determine whether they are entitled to financial provision from their former partner no later than one year after the day on which the cohabitants ceased to cohabit.
The arrangements in the 2006 Act in this area have been criticised, particularly by family lawyers, academics and the judiciary, as being unclear; having an inflexible time limit; and not having enough remedies.
The SLC made recommendations and produced a draft Bill to reform the existing arrangements. The proposals include:
- A new definition of “cohabitant” that the SLC considers is more modern and inclusive, and that does not rely on comparison with married couples or civil partners;
- A test for the court to apply which the SLC consider is clearer, including guiding principles aimed at achieving fair outcomes for both parties, underpinned by factors relevant to their application, and consideration of resources;
- A broader range of remedies for cohabitants, including orders for transfer of property and for short term payments for relief of serious financial hardship;
- A provision requiring the court to take account of agreements between cohabitants when deciding an application for financial provision;
- Retaining the one-year time limit for claims, and introducing flexibility so that late claims may go ahead on special cause shown;
- Introducing an absolute time limit of two years from the date the cohabitation ends, after which no late claim will be possible; and
- Provision enabling the couple to agree extension of the time limit so that they can negotiate settlement.
We think that implementation of the SLC’s recommendations would contribute to the following National Outcomes in the National Performance Framework:
- Communities: We live in communities that are inclusive, empowered, resilient and safe;
- Human Rights: We respect, protect and fulfil human rights and live free from discrimination; and
- Poverty: We tackle poverty by sharing opportunities, wealth and power more equally
Who will it affect?
If reform were to occur in this area there would be impacts on the following groups:
- Cohabiting couples or Former cohabiting couples and children;
- Solicitors, advocates and solicitor advocates, and third sector advice agencies offering advice to former cohabitants;
- The judiciary;
- The Scottish Courts and Tribunals Service; and
- The Scottish Legal Aid Board
According to the 2011 Scottish Census 9% (217,000) of families living in households were cohabiting couple families. The percentage of cohabiting couple families rose from 7% recorded in the Census 2001 to 9% in 2011. The Office for National Statistics (ONS) has estimated that in 2022 there were 297,000 cohabiting couple families.
We do not have access to court data on the number of actions raised seeking an order for financial provision under section 28. The Scottish Legal Aid Board has advised that between 2019 and 2023 it has made 100 civil legal aid grants in connection with those making such a claim and 39 grants to those defending such a claim.
What might prevent the desired outcomes being achieved?
We would need to bring forward legislation to the Scottish Parliament to implement the SLC’s proposals.
Stage 1: Framing
Results of framing exercise
There was a concern that perhaps some religious groups may take issue with these proposed reforms as improving the arrangements may be perceived to further undermine marriage.
We do not have statistics on cohabitation the same way we have statistics on marriage or civil partnership. We know that the number of cohabiting couples is increasing as marriages have been decreasing. The SLC noted that the number of cohabiting couples grew by 29.7% from 2005 to 2015.
Evidence suggests that, in terms of relative poverty, married people tend to be slightly better off than people who cohabit.
The SLC mentioned that “While the Family Law (Scotland) Act 2006 gave cohabitants statutory rights where none previously existed, there have been changes in society and in attitudes to relationships and families in Scotland since this legislation was introduced.”
As the law in this area has been criticised by those that practice it, any reforms would be seen as having a positive impact on them.
Improving the law might potentially increase the number of claims, but the SLC has suggested improving the law might mean more former cohabiting couples reach an agreement without raising a court action.
Evidence suggests that women are more negatively affected economically following divorce or separation than men. This could possibly be linked to more general gender inequality rather than the particular financial arrangements possible on divorce or separation.
If the law was made clearer it could allow more disputes between former cohabitants to settle out of court and avoid a legal battle, which could potentially benefit women. In some cases agreeing financial provision without involving a court will not be possible or appropriate for example if there is a history of domestic abuse in the relationship
Evidence suggests that more women initiate divorces than men, however we think there is evidence that there is no similar pattern about whether men or women are more likely to initiate separation in a mixed sex cohabiting relationship.
The proposed changes could have a positive impact on the financial lives of children as a direct result of the primary caregiver (predominantly the mother) being given better financial provision.
Extent/Level of EQIA required
This draft EQIA Record is about the potential reform of existing legislation and as such is not considered a significant policy change, so the level of EQIA required is low.
This draft EQIA Record has been prepared to support the consultation. The results of the consultation will be analysed and used to update the EQIA and support the Scottish Government’s decisions on next steps.
Stage 2: Data and evidence gathering, involvement and consultation
Age
Evidence gathered and strength/quality of evidence
The Census 2011 results indicate that cohabitation is a more common choice for younger people than marriage: 17% of those aged 20-24 and 28% of those aged 25-29 lived as a cohabiting couple. In comparison 3% and 18% respectively were living as a married couple. The proportion of people living in a married or civil partnership couple was higher than the proportion living in a cohabiting couple for those aged 30 and over.
This is high quality statistical evidence. It suggests that younger people might benefit more from the proposed reforms than older people who are more likely to have married or registered a civil partnership.
Source
NRS, Census 2011: Release 3D, 15 May 2014
Data gaps identified and action taken
N/A
Disability
Evidence gathered and strength/quality of evidence
We lack information about cohabitants with disabilities. (More generally, 32% of adults had a long-term limiting mental or physical health condition or disability in 2017)
Source
The Scottish Health Survey 2021 - volume 1: main report, Scottish Government (Last updated: November 2022)
Data gaps identified and action taken
We will consider consultation respondents’ views and evidence.
Sex
Evidence gathered and strength/quality of evidence
The 2011 Census shows that a higher proportion of females aged 16 to 24 were cohabiting than males. (1)
There is evidence that, in mixed sex marriages, more women than men initiate divorce. On average, 58% of divorces in Scotland in relation to mixed sex marriages in the 5 years from 2017/2018- 2021/2022 were initiated by women. (2)
However, there is evidence from the United States that suggests that men and women in non-marital heterosexual relationships are equally likely to want to break up. (3)
There is evidence which suggests that following divorce or separation, women can experience disproportionate declines in their income and standard of living and are at increased risk of experiencing poverty. There is also evidence that there are a number of risk factors (other than legal arrangements for financial provision following divorce or separation), which may influence these poorer economic experiences. Our draft Fairer Scotland Duty Assessment considers this evidence further. (4)
The evidence is good quality and suggests that there may be benefits for women from the proposed reforms, but our draft FSDA notes that the proposed reforms cannot address harms which arise for women from more systemic gender inequality issues.
Source
(1)NRS, Census 2011 Table DC1109SC - Household composition by sex by age.
(2)Scottish Government
(For statistics on divorce and dissolution see Civil Justice Statistics in Scotland 2022-23)
(4)See the evidence referred to in the draft Fairer Scotland Duty Assessment.
Data gaps identified and action taken
N/A
Pregnancy and maternity
Evidence gathered and strength/quality of evidence
There is published information about births in Scotland. This includes parental marital status information but there is no information on parents who were in a cohabiting relationship.
Census 2011 results indicate that there were 91,005 cohabiting couples living in a household with dependent children.
Source
NRS Statistics and Data: Vital Events: Births
at Tables 3.01a and 3.01b
NRS Census 2011 results Table DC1114SC - Dependent children by family type
Data gaps identified and action taken
N/A
Gender reassignment
Evidence gathered and strength/quality of evidence
We lack evidence about people with this protected characteristic in Scotland, including those who are in a cohabiting relationship.
Source
None
Data gaps identified and action taken
We will consider consultation respondents’ views and evidence.
Sexual orientation
Evidence gathered and strength/quality of evidence
The Office for National Statistics estimated that in 2022 there were 285,000 mixed sex cohabiting couples and 12,000 same sex cohabiting couples in Scotland.
This is good quality evidence but does not suggest anything in particular about the proposed reforms.
Under the current arrangements, the court has power to make an order for provision in respect of the economic burden of caring, after the end of the cohabitation, for a child of whom both cohabitants are parents, but not for a child who is or has been accepted as a child of the family. The SLC has recommended that no such distinction should be made. This change could benefit those in same-sex cohabiting relationships where a child of one of them was accepted as a child of the family.
Source
ONS Dataset Families by family type, regions of England and GB constituent countries, 18 May 2023
Data gaps identified and action taken
None
Race
Evidence gathered and strength/quality of evidence
We lack evidence about the races and ethnicities of cohabiting couples in Scotland. There is information in the Census 2011 results about ethnicity in Scotland.
Source
NRS, Census 2011. You can search the Census 2011 results by the Topics of Ethnicity, Identity, Language and Religion.
Data gaps identified and action taken
We will consider consultation respondents views and evidence.
Religion or belief
Evidence gathered and strength/quality of evidence
We lack evidence about the religions or beliefs of cohabiting couples in Scotland. There is information in the Scottish Census 2011 about the Scottish population’s religion or belief. (1)
Some religious or belief bodies had concerns that the introduction of the protections in the 2006 Act for former cohabitants might adversely impact on the institution of marriage. (2)
Improving the current arrangements in the 2006 Act for cohabitants may potentially benefit some people of faith. The Westminster Parliament’s Women and Equalities Select Committee considered reform of the rights of cohabitants in England and Wales where there is no equivalent to the 2006 Act provisions. Their report notes that introducing legal protections for cohabitants there could benefit women, especially women from ethnic minority backgrounds, who have had a “religious-only” marriage [a marriage which is not legally recognised, so there is no entitlement to equivalent rights to financial provision on divorce or dissolution]. (3)
Source
(1)NRS, Census 2011. You can search the Census 2011 results for the Topics of Ethnicity, Identity, Language and Religion
(2)You can review the material considered by the Scottish Parliament when the Family Law (Scotland) Bill was being considered.
(3)House of Commons, Women and Equalities Select Committee “The rights of cohabiting partners” Second Report of Session 2022–23 (parliament.uk) July 2022, at page 13-14.
Data gaps identified and action taken
We will consider consultation respondents views and evidence.
Marriage and civil partnership
Evidence gathered and strength/quality of evidence
In respect of this protected characteristic, we are required to comply with the first need of the public sector equality duty (the duty to eliminate discrimination, harassment, victimisation or other prohibited conduct) and only in respect of work. The proposed policies under consideration do not relate to work.
Source
N/A
Data gaps identified and action taken
N/A
Stage 3: Assessing the impacts and identifying opportunities to promote equality
Do you think that the policy impacts on people because of their age?
Eliminating unlawful discrimination, harassment and victimisation:
We do not consider the current law, or the potential changes, constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity:
The evidence suggests that cohabitants tend to be younger so improving the 2006 Act arrangements for financial provision on separation may benefit younger people. There may also be benefits for children of former cohabiting couples in improved arrangements.
Promoting good relations among and between different age groups:
This potential policy change is not about promoting good relations.
Do you think that the policy impacts disabled people?
Eliminating unlawful discrimination, harassment and victimisation
We do not consider the current law, or the potential changes, constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
We have no evidence to show how many cohabitants have disabilities.
Promoting good relations among and between disabled and non-disabled people
We have no evidence to show how many cohabitants have disabilities. The potential policy changes are not about promoting good relations.
Do you think that the policy impacts on men and women in different ways?
Eliminating unlawful discrimination
We do not consider the current law or the potential changes constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
The available evidence suggests that women may benefit from improving the arrangements for financial provision for a former cohabitant.
Promoting good relations between men and women
This is not the potential policy’s aim.
Do you think that the policy impacts on women because of pregnancy and maternity?
Eliminating unlawful discrimination
We do not consider the current law or the potential changes constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
The available evidence suggests that women may benefit from improving the arrangements for financial provision for a former cohabitant.
Promoting good relations
This is not the potential policy’s aim.
Do you think your policy impacts on people proposing to undergo, undergoing, or who have undergone a process for the purpose of reassigning their sex?
Eliminating unlawful discrimination
We do not consider the current law or the potential changes constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
We have no evidence to show how many cohabitants have the protected characteristic of gender reassignment.
Promoting good relations
This is not the potential policy’s aim.
Do you think that the policy impacts on people because of their sexual orientation?
Eliminating unlawful discrimination
We do not consider the current law or the potential changes constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
None
Promoting good relations
This is not the potential policy’s aim.
Do you think the policy impacts on people on the grounds of their race?
Eliminating unlawful discrimination
We do not consider the current law or the potential changes constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
None
Promoting good race relations
This is not the potential policy’s aim.
Do you think the policy impacts on people because of their religion or belief?
Eliminating unlawful discrimination
We do not consider the current law or the potential changes constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
None
Promoting good relations
This is not the potential policy’s aim. While some religious bodies had concerns that introducing protections for cohabitants might undermine the institution of marriage, the potential reforms concern improving existing arrangements.
Stage 4: Decision making and monitoring
Identifying and establishing any required mitigating action
Have positive or negative impacts been identified for any of the equality groups?
Only positive impacts identified, as above. We will analyse consultation responses and additional evidence obtained before decisions on next steps are reached and will update and publish this EQIA if legislation is progressed.
Is the policy directly or indirectly discriminatory under the Equality Act 2010?
No
If the policy is indirectly discriminatory, how is it justified under the relevant legislation?
N/A
If not justified, what mitigating action will be undertaken?
N/A
Describing how Equality Impact analysis has shaped the policy making process
At this pre-consultation stage, the Scottish Ministers have not reached a view on whether to bring forward legislation.
This draft EQIA has allowed us to identify that the potential reforms might have positive impacts for women and younger people.
We will analyse consultation responses and the additional evidence obtained from consultees before decisions on next steps are reached.
There are no direct implications for finance as a result of this draft EQIA. There would be costs in relation to implementing any changes in the law if after consultation, legislation proceeds. The SLC undertook a draft Business and Regulatory Impact Assessment.
Monitoring and Review
This draft EQIA is intended to support a public consultation on taking forward the SLC’s recommendations and draft Bill. Typically there would be a review of legislation within 10 years after implementation. We will consider monitoring and review issues once the consultation responses are analysed and a way forward identified.
Stage 5 will be completed when the final version of the EQIA is published after the consultation responses are analysed and decisions on next steps are taken.
Stage 5: Authorisation of EQIA
Please confirm that:
This Equality Impact Assessment has informed the development of this policy:
Yes
No
Opportunities to promote equality in respect of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation have been considered, i.e.:
- Eliminating unlawful discrimination, harassment, victimisation;
- Removing or minimising any barriers and/or disadvantages;
- Taking steps which assist with promoting equality and meeting people’s different needs;
- Encouraging participation (e.g. in public life)
- Fostering good relations, tackling prejudice and promoting understanding.
Yes
No
If the Marriage and Civil Partnership protected characteristic applies to this policy, the Equality Impact Assessment has also assessed against the duty to eliminate unlawful discrimination, harassment and victimisation in respect of this protected characteristic:
Yes
No
Not applicable
Declaration
I am satisfied with the draft equality impact assessment that has been undertaken for potential reform of cohabitants’ rights on separation under the 2006 Act and give my authorisation for the results of this assessment to be published on the Scottish Government’s website.
[This will be completed after this consultation and views have been obtained from consultees]
Name:
Position:
Authorisation date: