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 Fairer Scotland Duty assessment
Title of policy/practice/ strategy/legislation etc.
Proposed reform of the rights of cohabitants on separation under the Family Law (Scotland) Act 2006
Lead Minister: Minister for Victims and Community Safety
Directorate Division team
Directorate for Justice, Civil Law and Legal System Division, Family Law Policy Unit
Stage 1: Planning
Aim
Under section 28 of the Family Law (Scotland) Act 2006 (the 2006 Act), a former cohabitant can apply to the court for an order for financial provision not later than one year after the day on which they ceased to cohabit with their partner otherwise than by reason of death.
The Scottish Government is consulting on recommendations from the Scottish Law Commission (the SLC) for reform of these arrangements. The SLC made their recommendations in their 2022 Report on Cohabitation (the Report). The Report includes a draft Bill.
The SLC’s key recommendations consist of:
- a revised definition of “cohabitant” that does not rely on comparison with married couples or civil partners
- a revised test for the court to apply when separated cohabitants claim financial provision, including guiding principles aimed at achieving fair outcomes for both parties, underpinned by factors relevant to their application, and consideration of the parties’ 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 in addition to the existing remedy of payment of a capital sum
- a provision requiring the court to take account of agreements between cohabitants when deciding an application for financial provision
- retaining the existing one-year time limit for claims, and introducing flexibility so that late claims may go ahead on special cause shown
- provision enabling the couple to agree extension of the time limit so that they can negotiate settlement
- an absolute time limit for a claim of two years from the date the cohabitation ends, after which no late claim will be possible.
This draft Fairer Scotland Duty Assessment has been prepared to help inform the Scottish Government’s consultation. Implementing the recommended reforms would require a Bill in the Scottish Parliament. This would be a strategic decision.
The Scottish Government’s consultation will gather additional views and evidence on the SLC’s scheme for reform.
Who will the proposed reforms affect?
We think that the proposed reforms would affect:
- former cohabitants whose cohabiting relationship has ended in separation and who wish to seek financial provision from their former partner and their children
- solicitors, advocates and solicitor advocates who provide legal advice to former cohabitants
- third sector advice providers such as Citizens Advice Scotland
- the Scottish Legal Aid Board which provides civil legal aid grants, including for claims under section 29 of the 2006 Act, to eligible applicants
- the Scottish courts and judiciary who deal with claims under section 29 of the 2006 Act
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 made 100 civil legal aid grants in connection with those making such a claim and 39 civil legal aid grants to those defending such a claim.
What main outcomes would the proposed reforms deliver?
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.”
What is the timeframe for completing the Fairer Scotland Duty Assessment?
Once responses to the consultation have been analysed and the Scottish Government has considered its next steps, we will update our draft impact assessments, including this draft FSDA.
This draft FSDA has involved officials from other policy teams in Scottish Government as well as Justice Analytical Services.
Stage 2: Evidence
What does the evidence suggest about existing inequalities of outcome caused by socio-economic disadvantage, in this specific policy area?
The Scottish Government’s Poverty and Income Inequality in Scotland 2020-23
statistical publication notes that:
- in the most recent period, the poverty rate for single mothers and single childless women was the same (29%);
- married and cohabiting adults were the least likely to be in poverty; and
- that poverty among divorced/separated adults had largely decreased over the longer term.
We have not carried out a full review of the research into the outcomes for those who divorce or separate.
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.
We are also aware that a number of potential reasons have been suggested to explain the difference in experience between men and women. These include the gender pay gap (the average earnings of women being lower than those of men), as well as women being more likely to be the primary carer for any children of a relationship, further impacting on their earning capacity where sufficient childcare is not available. We identified:
What does the evidence suggest about possible impacts of the policy/programme/decision, as planned, on those inequalities of outcome?
The SLC has suggested, in their Report on Cohabitation, that the:
“recommended reforms, if implemented, will result in a clear, principled and more modern framework for determining claims for financial provision by separating cohabitants, thereby encouraging fairer outcomes, whether by agreement or determined by the court”.
The evidence suggests that reform of the arrangements in the 2006 Act have the potential to benefit women, but they cannot address all the reasons for women’s poorer socio-economic outcomes following separation, including women’s experience of gender inequality in the labour market.
Is there evidence that suggests alternative approaches to the policy/programme/decision? For example, evidence from the UK or international evidence?
The SLC considered the law on cohabitants’ rights on separation in other jurisdictions in reaching its recommendations about reform in Scotland. The SLC’s preceding Discussion Paper on Cohabitation sets out the results of this research into comparative law.
What gaps are there in key evidence? Is it possible to collect new evidence quickly in other areas? For example, through consultation meetings, focus groups or surveys?
The Scottish Government has welcomed the SLC’s recommendations and considers them to be a sound basis for reform of the law in this area. The purpose of this draft FSDA is to support the public consultation on the SLC’s recommendations and the responses will be analysed before we reach decisions on our next steps.
How could you involve communities of interest (including those with lived experience of poverty and disadvantage) in this process?
The SLC has taken account of the views of respondents to its Discussion Paper in developing their recommendations. There is a list of respondents to the SLC’s Discussion Paper on Cohabitation at Annex D of the Report. From the perspective of women’s equality, these respondents included Engender and Scottish Women’s Aid. We welcome responses to our consultation on the SLC’s recommendations and are happy to meet with any interested groups to help gather additional views and evidence.
Stage 3: Assessment and improvement
What options could strengthen this programme, policy or decision in its impact on inequalities of outcome or inequalities of outcome associated with particular groups?
We have not identified any changes to the SLC’s draft Bill which would strengthen the recommendations’ impact on inequalities of outcome. The scope of these proposed reforms means that they cannot tackle all the factors which lead to inequalities of outcome affecting women following separation. The Scottish Government published its gender pay gap action plan in 2019.
Once consultation responses are analysed, we will consider our next steps, including whether in our view any changes to the SLC’s draft Bill are needed.
What are the pros and cons of these options?
Not applicable.
Stage 4: Decision
At this pre-consultation stage, the Scottish Government does not propose any changes to the SLC’s draft Bill which have the aim of addressing socio-economic inequalities of outcome. Once consultation responses are analysed, we will consider whether amendments to the draft Bill are needed for any reason.
Sign off of the Fairer Scotland Duty Assessment template
This will be completed after this consultation and views have been obtained from consultees
Stage 5: Publication
The final stage is the Fairer Scotland Duty summary for publication on the Scottish Government website.