Family law: consultation

Part 1: Improving cohabitants’ financial rights under the Family Law (Scotland) Act 2006

Introduction and background

1.01. This part of the consultation is concerned with reform of the provisions in the Family Law (Scotland) Act 2006 (the 2006 Act) on financial provision for cohabitants when they cease to cohabit otherwise than by reason of death (we will refer to this as “financial provision on separation”) or where one of them dies leaving money and/or property (the estate) but does not leave a valid will setting out how the estate should be distributed (we will refer to this as “financial provision on death”).

1.02. Section 25 of the 2006 Act defines “cohabitant” for the purposes of sections 26 to 29.

1.03 Sections 26 and 27 create presumptions in relation to cohabitants’ rights in certain household goods and certain money and property, subject to any agreement made by the cohabitants to the contrary.

1.04 Section 28 makes provision for claims for financial provision by former cohabitants within one year of the date of separation (when this is due to a reason other than death).

1.05 Together, sections 26 to 28 deal with financial provision on separation.

1.06 Section 29 deals with financial provision on death. It allows a cohabitant to claim against their deceased cohabitant’s estate within six months of death, by applying to the court. A claim can only be made where the deceased died without leaving a valid will, known as intestacy. The Scottish Parliament recently agreed to raise the time limit for making a claim to twelve months (see section 78 of the Trusts and Succession (Scotland) Act 2024), but this has not yet been brought into force.

1.07 The Scottish Law Commission (SLC) is established by statute to promote law reform and recommends ways of simplifying, updating and improving the law of Scotland. There is more information about the SLC on their website here.

1.08 The SLC has made recommendations for the reform of sections 25 to 28 of the 2006 Act in their 2022 Report on Cohabitation (PDF, 2.5MB) (the Report), in particular that a Cohabitants (Financial Provision) (Scotland) Bill (the draft Bill) be introduced in the Scottish Parliament.

1.09. We are seeking views on the SLC’s recommendations and draft Bill, and also on potential reform of cohabitants’ rights on intestacy under section 29 of the 2006 Act.

Financial provision on separation

1.10. The Report is the result of a detailed review by the SLC of the arrangements for financial provision on separation in the 2006 Act. This work included the consideration of responses to a Discussion Paper (PDF, 1575 KB) published in 2020. The intention of the SLC recommendations is to address a range of criticisms that have been made of these provisions, in particular that the test to be applied by the court in making an order for financial provision on separation under section 28 lacks clarity.

1.11 Chapter 2 of the Report discusses whether a separate regime should be retained for financial provision on separation from that for financial provision on divorce and dissolution of civil partnership. The SLC recommend that the regimes for financial provision should remain separate, for the reasons set out in paragraphs 2.36 to 2.39 of their Report. The SLC nonetheless note that:

“There is evidence of public support for bringing the law governing cohabitants’ rights on cessation of their relationships more in line with that pertaining to spouses and civil partners on divorce and dissolution.” (paragraph 2.39 of the Report)

1.12 The recommended approach means that the arrangements for financial provision on separation do not mirror for cohabitants the law about financial provision on divorce and dissolution set out in the Family Law (Scotland) Act 1985 (“the 1985 Act”). One key area of difference is that there is no equivalent concept to that of “matrimonial property” or “partnership property” acquired during, or in limited circumstances for, the marriage or civil partnership which is, in principle, to be fairly shared on divorce or dissolution: section 9(1)(a) and section 10 of the 1985 Act. There is also no equivalent under the recommended reforms to the power of a court under section 18 of the 1985 Act to set aside or vary a transfer or transaction which had the effect of defeating a claim for financial provision on divorce or dissolution.

1.13 The Government considers that the SLC’s recommendations and draft Bill provides a sound basis for reforming the law in this area. The purpose of this consultation is to identify whether there is general consensus around the SLC’s proposed reforms to the existing regime, and to seek views about our proposed approach to implementing the Report.

1.14 We will not repeat in this consultation the detailed consideration contained in the Report or restate matters already clearly explained by the SLC. Instead, we aim to:

• Outline the SLC’s recommended changes.
• Outline any points where the Government proposes a change from the SLC recommendations.
• Seek views on our approach to taking forward the SLC’s scheme and also on specific points, such as the Scottish Government’s proposed transitional arrangements.

Financial provision on separation - summary of Report and draft Bill

Definition of “cohabitant”- section 25 of the 2006 Act

1.15 Chapter 3 of the Report considers the definition of “cohabitant” in section 25 of the 2006 Act.

1.16 Section 25(1) of the 2006 Act, as modified by section 4(2) to 4(4) of the Marriage and Civil Partnership (Scotland) Act 2014 (the 2014 Act), currently provides that “cohabitant” means either member of a couple who are or were living together as if they were married to each other. Section 25(2) provides that in determining whether a person is a cohabitant, the court must have regard to the length of the period during which the couple have been living together (or lived together); the nature of their relationship during that period, and the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.

1.17 The SLC recommends that section 25 be replaced with a definition which no longer relies on a comparison with marriage. This recommendation is reflected in clause 1 of the draft Bill.

1.18 The findings of the SLC’s review and the rationale for their recommendation in relation to section 25 are discussed at paragraphs 3.67 to 3.72 of the Report. The SLC is clear that those who would qualify as cohabitants now would continue to do so under the recommended new provision.

1.19 The SLC recommendation relates to the definition of cohabitant for the purposes of section 26 to 28 of the 2006 Act, not to section 29 which is considered part of the law of succession. We seek your views on whether this amended definition should also apply to claims arising under section 29 of the 2006 Act at paragraph 1.75 below.

1.20 Under the SLC’s recommended provision “cohabitant” would mean “one of two persons who are (or were) living together as a couple in an enduring family relationship”, are aged 16 or over, are not spouses or civil partners of each other, and are not “closely related” to each other. Paragraphs 3.37 and 3.38 of the Report set out what provision the draft Bill makes on the meaning of “closely related” as part of their recommendations.

1.21 The SLC has recommended that, when a court determines whether someone seeking an order for financial provision meets the definition of a cohabitant, the court consider all the circumstances of the case, as well as:

• the relationship’s duration;
• the extent to which the couple live or lived together in the same residence;
• the extent to which the couple are or were financially interdependent; and
• whether there is a child of whom the couple are the parents or who is or was accepted by them as a child of the family.

1.22 Part 2 of this consultation seeks views on whether the Scottish Government should legislate to raise the minimum age of marriage and civil partnership to 18 from 16.

1.23 The SLC’s recommended definition of the minimum age at which a person could be considered a cohabitant for the purposes of the 2006 Act aligns with the current legal minimum age of marriage and civil partnership.

1.24 However, the removal of a comparison with marriage in the definition of cohabitant in the 2006 Act would mean that the presumptions which arise under the current statutory definition would no longer do so. This in turn would mean that the minimum age at which a person could be considered a cohabitant under the 2006 Act could in future diverge from the minimum age of marriage (and civil partnership).

1.25 Our initial view is that if the Parliament legislated to raise the minimum age of marriage and civil partnership, there should continue to be some protections under the 2006 Act for a cohabitant or former cohabitant aged 16 or 17. Children can leave home without parental consent once they are 16 which is also the age of consent to sexual intercourse. However, we would welcome views from respondents on this approach.

Presumptions about household goods, money and property - sections 26 and 27 of the 2006 Act

1.27 Section 26 creates a presumption that cohabitants or former cohabitants own the “household goods” acquired during the period of cohabitation equally, unless ownership is proved to be otherwise. “Household goods” means any goods kept or used at any time during the cohabitation in any residence in which the cohabitants are (or were) cohabiting for their joint domestic purposes. It does not include money, securities, motor cars, caravans or other road vehicles or domestic animals.

1.28 Section 27 provides that money derived from any allowance made by either cohabitant for their joint household expenses or for similar purposes, or any property acquired out of such money, is to be treated as belonging to each cohabitant in equal shares. This applies except if the cohabitants have made an agreement that it should be otherwise. “Property” does not include a residence used by the cohabitants as the sole or main residence they live, or lived, together in.

1.29 Chapter 4 of the Report considers these provisions and the SLC’s findings and recommendations regarding these provisions are discussed at paragraphs 4.18 to 4.21. Clauses 2 and 3 of the draft Bill implement the recommendations.

1.30 The SLC suggests that section 26 be amended to clarify that the relevant household goods would be those “in any residence in which the cohabitants are (or were) cohabiting”. Their view is that the definition of household goods should also be amended so that only those household goods used for the joint domestic purposes of the cohabitants would be subject to the presumption.

1.31 Under the SLC scheme, section 27 would be replaced with a provision so that any money designated for use to meet, or be available to meet, household or joint expenses, or for similar purposes, as well as any property purchased with such money would be treated as belonging in equal shares to each cohabitant. This would remain subject to any agreement between the cohabitants to the contrary. The recommended replacement for section 27 clarifies that “property” in this context does not include any heritable property (land or buildings) as well as not including any family home in which the former cohabitants live, or lived, together in.

Orders for financial provision on separation - section 28 of the 2006 Act

1.32 Under section 28, a cohabitant can apply to the court for an order for financial provision from their former partner when they separate. The application must be made within a year of the parties having ceased to cohabit.

1.33 Under section 28(2), the court can make any of the following types of order:

• an order for payment of a capital sum of an amount specified in the order;
• an order to pay the applicant such specified amount in respect of any economic burden of caring, after the end of the cohabitation, for a child under the age of 16 of whom the cohabitants are parents; and
• such interim order as the court thinks fit.

1.34 In considering whether to make any of these orders the court must consider whether, and if so to what extent: the non-applicant cohabitant has derived economic advantage from contributions made by the applicant; and the applicant has sustained economic disadvantage in the interests of the defender and any relevant child.

1.35 For the purpose of considering whether the applicant has sustained economic disadvantage “relevant child” includes both a child under 16 of whom the cohabitants are parents and a child under 16 who is or was accepted by the cohabitants as a child of the family. This can be contrasted with the definition of “child” where the applicant seeks an order to pay a specified sum in respect of the economic burden of caring for a child. In these circumstances, the “child” can only be a child of whom the former cohabitants are parents. This means that there is currently an inconsistency in how “child” is defined for different provisions of the 2006 Act.

1.36 The SLC discusses the criticisms of the current section 28 test in Chapter 5 of their Report at paragraphs 5.8 to 5.18. Their conclusions and recommendations for reform of the existing test are set out at paragraph 5.58, and the key resulting suggested amendments to the 2006 Act are set out in clause 4 of the draft Bill.

1.37 In summary, the recommended changes would implement a new test requiring the court to make such an order for financial provision as is justified by the application of any or all of the specified guiding principles and is reasonable having regard to the resources of the cohabitants.

1.38 Under the scheme for reform the court would have to apply the following “guiding principles” in their application of the new test:

• that an economic advantage derived by a cohabitant from the contributions of the other should be fairly distributed between them, and that a cohabitant who has suffered economic disadvantage in the interests of the other or the interests of any child under 16 of whom the cohabitants are parents or who is accepted as a child of the family, should be fairly compensated (Guiding principle A);
• a cohabitant who seems likely to suffer serious financial hardship as a result of the cohabitation having ended should be awarded such provision as is reasonable to provide for the short-term relief of that hardship (Guiding principle B); and
• the economic responsibility of caring for a child under 16 of whom the cohabitants are parents, or who is or was accepted by the cohabitants as a child of the family, should be shared fairly between the cohabitants (Guiding principle C).

1.39 The proposed arrangements would consequently no longer distinguish between children of whom the former cohabitants are parents and children who are or were accepted by the former cohabitants as children of the family: see paragraphs 5.85 and 5.86 of the Report.

1.40 The SLC recommends that a court considering an order for financial provision must, in applying the guiding principles, have regard to certain specified factors. Some factors, as set out in the next page, would be relevant to the application of each guiding principle and others would apply to all the guiding principles: paragraphs 5.50 to 5.57 of the Report. Clause 4 of the draft Bill would insert a new section 28C in the 2006 Act to make the appropriate provision.

Guiding Principle A

• Fair distribution of economic advantages derived by one cohabitant between both, and
• Fair compensation for economic disadvantage suffered by one in the interests of the other cohabitant or of a child.

Relevant factors

Extent of change during cohabitation to economic circumstances of either or both cohabitants

If change has occurred, extent to which one cohabitant has derived economic advantage from the other’s contributions or has suffered economic disadvantage in the interests of the other cohabitant or of a child.

Guiding Principle B

Reasonable provision for short term relief of serious financial hardship.

Relevant factors

Claimant’s age, health and earning capacity.

Extent of which each has been financially dependent on the other cohabitant during cohabitation.

Needs and resources of the cohabitants.

Guiding Principle C

Fair sharing of economic responsibility of caring for child.

Relevant factors

Expenditure or loss of earning capacity caused by need to care for child.

Need to provide child’s accommodation.

Child’s age and health.

Decree or aliment arrangement of child.

Availability and cost of childcare services.

Educational, financial and other circumstances of the child.

Cohabitants’ needs and resources.

1.41 The factors which the SLC consider are relevant to the application of all of the guiding principles are:

• the terms of any agreement between the cohabitants;
• any behaviour by either cohabitant, including abusive behaviour, which in the case of Guiding Principle A has resulted in economic advantage or disadvantage to either, or in the case of Guiding Principles B or C, has had an effect on the resources of either cohabitant; and
• all the other circumstances of the case.

1.42 We further discuss the role of conduct, including abuse, in relation to orders for financial provision on separation, below.

Remedies under section 28

1.43 Under the current arrangements, there are limited remedies available to a former cohabitant seeking financial provision from their former partner. These are set out at section 28(2) of the 2006 Act and are:

• an order for payment of a capital sum;
• an order for payment of 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 parents; and
• such interim order as the court thinks fit.

1.44 The SLC discusses the findings of their review of the remedies available under section 28 at paragraphs 5.71 to 5.79. In particular the SLC recommends that property transfer orders should be available under the new scheme along with a range of incidental orders.

1.45 Clause 4 of the draft Bill would insert a new list of remedies in a new section 28(3) so that the orders available to the court would be as follows:

• an order for payment of a capital sum, of an amount specified in the order, by one of the cohabitants to the other;
• an order for one of the cohabitants to make payments to the other over a period of no more than 6 months, of the amounts and at the intervals specified in the order;
• an order for the transfer of property by one of the cohabitants to the other;
• an incidental order—

(a) for the valuation of property

(b) for the sale of property

(c) in respect of a relevant residence regulating, pending the sale or transfer of property from one cohabitant to the other—

(i) the occupation of that residence

(ii) the use of furniture or household goods within that residence

(iii) liability for outgoings in respect of that residence or furniture or

goods within it

(d) that security must be given for any financial provision

• such interim orders as the court thinks fit

1.46 The SLC has not recommended that a pension sharing order be available to the court handling a claim for financial provision on separation. Their reasoning is set out in paragraph 5.74 of the Report.

1.47 A pension sharing order is available as a remedy for spouses and civil partners seeking financial provision on divorce or dissolution.^[1] The Welfare Reform and Pensions Act 1999 makes provision for pension sharing in certain cases and amended the Family Law (Scotland) Act 1985 (the “1985 Act”) to allow for pension sharing orders to be made at the time of divorce or dissolution of a civil partnership. The Pensions Act 2008 also enabled Pension Protection Fund compensation to be shared on divorce or dissolution.

1.48 Under the devolution settlement, occupational and personal pensions are reserved to the Westminster Parliament, subject to limited exception. For effective provision to be made for a former cohabitant to benefit from a pension sharing order made in terms of an Act of the Scottish Parliament, additional legislation at Westminster would be required. This might for example be an order under section 104 of the Scotland Act 1998 by the UK Government making the necessary provision under reserved law, if this is agreed. We note that legal provision for cohabitants differs in other parts of the UK and there is no statutory provision in England and Wales for cohabitants equivalent to the 2006 Act arrangements for financial provision on separation.

Time limit for a claim under section 28 of the 2006 Act

1.49 Under section 28(8) of the 2006 Act, a claim for financial provision must be made not later than one year after the day on which the cohabitants cease to cohabit. Chapter 6 of the Report sets out the criticisms of this arrangement and their recommendations for reform. Clause 4 of the draft Bill inserts section 28E into the 2006 Act to reflect the recommendations.

1.50 The SLC considers that the court should have discretion to accept a claim after the one-year period has expired “on special cause shown” within a further one-year period. No claim for financial provision could be made after the expiry of two years from separation. “Special cause” is not defined in the draft Bill. Case law authorities highlighted by the SLC at paragraphs 6.36 to 6.39 of their Report suggest this would mean a cause which is special or unusual to the case. The SLC advise that:

“Mere ignorance of the time limit would not be sufficient for the exercise of discretion. We would expect the court to take account of matters such as the illness of one of the parties or their children, whether there is a history of domestic abuse and other social and economic factors arising from the relationship breakdown which have caused or contributed to the lateness of the action.” (paragraph 6.40, Report)

1.51 Under the recommended regime, former cohabitants would be able to agree in writing to extend the initial one-year time limit on one occasion, for a maximum period of six months, in order to facilitate an agreement. If agreement is not reached and a court action is not raised within the 18-month extended period, an application for financial provision would be late and the applicant would need to show special cause.

Cohabitation agreements and financial provision on separation

1.52 Some couples may have entered into a contractual agreement with each other to address matters such as their ownership of property, to opt out of the 2006 Act arrangements, or to divide assets. The SLC notes that cohabitation agreements can also deal with other matters such as arrangements for the care of children after separation, which can have an indirect financial impact on the parties.

1.53 In Chapter 7 of the Report, the SLC recommends that provision should be made to require the court to have regard to the terms of any agreement between the cohabitants, whenever made, when the court is applying the guiding principles: Clause 4 of the draft Bill inserting section 28C(4)(a) into the 2006 Act. In addition, the court is required not to make an order inconsistent with any term of such an agreement, unless the term is set aside by an order: Clause 4 of the draft Bill, inserting section 28C(5) into the 2006 Act.

1.54 An agreement, or a term of an agreement, between spouses and civil partners as to financial provision on divorce or dissolution can be set aside or varied on the basis that they were not fair and reasonable when the agreement was made under section 16(1)(b) of the 1985 Act.

1.55 The SLC’s draft Bill includes similar provision for a court to vary or set aside a cohabitation agreement which is wholly or partly concerned with financial provision after the end of the cohabitation, or a term of such an agreement, if the agreement or term was not fair and reasonable at the time it was entered into: Clause 4 of the draft Bill, inserting section 28D into the 2006 Act. Under the proposed scheme, an order to set aside or vary such an agreement or term of an agreement, would only be possible when a court is determining a claim for financial provision.

Role of conduct, including abuse, in financial provision on separation

1.56 The SLC has recommended that the court considering a claim for financial provision be required in the application of Guiding Principle A (fair distribution of economic advantage/fair compensation for economic disadvantage) to take account of any behaviour, including the abusive behaviour by one cohabitant of the other that results in either deriving economic advantage or suffering economic disadvantage. In applying Guiding Principles B (provision for short term relief for hardship) and C (Fair sharing of economic responsibility for a child) the court is to take account of behaviour which has had an effect on either cohabitant’s resources.

1.57 The SLC’s approach is consistent with the treatment of conduct affecting economic circumstances or resources in relation to decisions about financial provision on divorce or dissolution under the 1985 Act: see section 10(6) and section 11(7) of the 1985 Act.

Appropriate court for decisions relating to financial provision on separation

1.58 Under the SLC’s scheme for reform, section 28G, which would be inserted into the 2006 Act by Clause 4 of the draft Bill, defines the “appropriate court” which could make an order for financial provision after separation as:

“ …the court which would have jurisdiction to hear, in relation to the cohabitants, an action—

(a) of divorce if they were married to each other,

(b) for the dissolution of the civil partnership if they were civil partners of each other…”

1.59 Provision is made about which court in Scotland has jurisdiction (authority) to hear a case in relation to a divorce action in the Domicile and Matrimonial Proceedings Act 1973 (sections 7(2A), section 8(2) and schedule 1B, paragraph 3). In relation to dissolution of civil partners the relevant provision is found in the Civil Partnership Act 2004 at section 225.

1.60 The Scottish Government’s view is that a Bill to progress the reform of the 2006 Act arrangements for cohabitants need not reference both divorce and dissolution of civil partnership in the definition of “appropriate court”. We consider that a reference should be made only to the jurisdiction of the court in relation to divorce alone. Both mixed-sex and same-sex couples seeking to formalise their relationship in Scotland can either marry or register a civil partnership.

Question 1: Do you disagree with any aspect of the SLC draft Bill to improve rights of cohabitants when their relationship ends otherwise than on death, or consider that any appropriate provision is missing?

Yes (disagree) / No

Don’t know

If you answered Yes (you disagree with an aspect or aspects of the SLC draft Bill), please give reasons for your answer:

Proposed transitional arrangements for legislation to improve financial provision on separation

1.61 Clause 5(3) of the draft Bill provides that regulations made to commence the provisions of any new Act agreed by the Scottish Parliament may also include transitional provision. If legislation proceeds, the transitional arrangements will determine how the changeover from the existing arrangements in sections 25-28 of the 2006 Act to the new scheme is to operate, particularly as regards the cohabiting relationships it affects.

1.62 The provisions of the 2006 Act came into force on 4 May 2006 subject to certain transitional and savings provisions in terms of The Family Law (Scotland) Act 2006 (Commencement, Transitional Provisions and Savings) Order 2006. Article 6 of this Order provided that section 28 of the 2006 Act did not apply to cohabitants who had ceased to cohabit before 4 May 2006.

1.63 Our initial thinking, subject to respondents’ views, is that the proposed new arrangements should also not apply to cohabitants who cease to cohabit before any legislation passed by the Parliament implementing the SLC scheme comes into effect. Under this approach, court actions already commenced at the date of commencement of such legislation could continue, but the existing law would continue to apply to those cases. Cohabitants who had separated before the commencement date could still raise an action, but would remain subject to the existing arrangements, including the one-year time limit.

Question 2: Should the scheme for the reform of cohabitants’ rights on separation apply to couples who separate after the date of commencement of the legislation implementing the proposed reforms?

Yes / No

Don’t know

If you answered No (you disagree with the Government’s proposed transitional arrangements), please give any reasons for your answer:

Impact Assessments for financial provision on separation

1.64 In accordance with usual practice, the Scottish Government has prepared a number of draft (or partial) impact assessments to accompany and help inform this consultation on the minimum age of marriage and civil partnership. These are published and are available at: http://www.gov.scot/ISBN/9781806433285.

1.65 The Scottish Government considers that the changes considered here to the 2006 Act would have minimal impact on the environment. Accordingly, the Scottish Government has sent a pre-screening exemption from Strategic Environmental Assessment (SEA) to the usual SEA consultation authorities.

1.66 The SLC published a Business and Regulatory Impact Assessment (“BRIA”) which is available at: BRIA - Aspects of Family Law - Report on Cohabitation (Report No. 261) (PDF, 414 KB). This assessment concludes that the benefits of reform under the SLC scheme would result in savings on the costs that private individuals incur in instructing legal advisers because advisers will be able to give clearer advice at an earlier stage. In addition, because the proposed scheme allows for the former cohabitants to agree to extend the time limit to negotiate a settlement, court costs and time which would otherwise be incurred in respect of actions that are raised and then sisted (legally paused) purely to avoid an applicant missing the one-year time limit are avoided.

1.67 We have not finalised a Bill, however, we have published a draft Child Rights and Wellbeing Impact Assessment (CRWIA) to help support consultation. This notes that the evidence suggests that women’s income and standards of living often disproportionately decline following divorce or separation. Consequently, improvements to the arrangements for cohabitants seeking financial provision following separation could, at least in principle, directly benefit former cohabitants who are female and aged 16 or 17 and are likely to indirectly benefit dependent children of former cohabitants. We will update and publish an updated CRWIA and a Statement of Compatibility with any Bill to reform the 2006 Act.

1.68 Our draft Equality Impact Assessment Record (EQIA) notes evidence that cohabitants are often in younger age groups, and 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. Consequently, there are likely to be positive impacts arising from reform for the protected characteristics of Age and Sex.

1.69 The available evidence on the impact of separation on women considered in our draft Fairer Scotland Duty Assessment again suggests that reform of the arrangements in the 2006 Act has the potential to benefit women. However, the scope of the reforms being considered are not capable of addressing all the underlying reasons for women’s poorer socio-economic outcomes after separation.

1.70 We have prepared a pre-screening exemption for a Strategic Environmental Assessment as the changes considered in this part of the consultation would have minimal impact on the environment. We have also prepared a screen out for an Island Communities Impact Assessment. The reforms under consideration do not concern the provision of legal services or on the location of courts in Scotland. We have no particular evidence which indicates that those in an island community are more or less likely to make a claim under the 2006 Act or that the proposed reforms might have a differential impact in island communities from other parts of Scotland or for any island community different from the impact in other types of community in Scotland.

Question 3: Do you have any comments on our draft impact assessments on the proposals for improving cohabitants’ rights when their relationship ends otherwise than on death?

Yes / No

If you answered Yes, please outline these comments and/or evidence:

Question 4: Do you have any other comments on the proposals for improving cohabitants’ rights when their relationship ends otherwise than on death?

Yes / No

If you answered Yes, please outline these comments:

Financial provision on intestacy

Current Law

1.71 Making a will is a means of ensuring that an individual's property devolves on death as they intend, save for the existing limited protections in relation to legal rights. Many people though do not make a will for a whole range of reasons. Where a person dies without leaving a valid will this is sometimes referred to as “intestacy” and his or her estate (financial assets, property and possessions) becomes known as an “intestate estate”.

1.72 Under the current law a surviving cohabitant can make an application to the court for financial provision from their deceased partner’s intestate estate. Cohabitants have no rights where the deceased left a will, that is, where the deceased died testate. Under section 29 of the 2006 Act a cohabitant has a right to make a claim on their deceased cohabitant's estate where there is no will within six months from the date of death. If the Court makes an award, the amount will not exceed what the applicant would have received had they been a spouse or civil partner.

1.73 Whether someone is a “cohabitant” in these circumstances depends on whether they meet the necessary statutory definitions laid out in section 25 of the 2006 Act. This section defines a “cohabitant” as a member of a couple who are or were living together as if they were spouses or as (same sex) civil partners.

Proposals for reform

1.74 The SLC consulted on the definition of cohabitant for the purposes of applying to the court for financial provision when cohabiting partners split-up. Their Report (PDF, 2.5MB) has recommended that the current definition of “cohabitant” in Section 25 of the 2006 Act for the purposes of sections 26 to 28F of their draft Bill but not section 29 should be amended to mean one of two persons who -

(a) are (or were) living together as a couple in an enduring family relationship,

(b) are aged 16 or over,

(c) are not spouses or civil partners of each other, and

(d) are not closely related (as defined) to each other.

1.75 The SLC further recommends that, in determining whether two persons are (or were) living together as a couple in an enduring family relationship, the court must have regard to all the circumstances of the relationship, including the following matters:

(a) the duration of the relationship,

(b) the extent to which they live (or lived) together in the same residence,

(c) the extent to which they are (or were) financially interdependent,

(d) whether there is a child of whom the persons are the parents or who is (or was) accepted by the persons as a child of the family.

Question 5: Should the recommended definition of “cohabitant” under the SLC’s proposals for reform of cohabitants’ rights on separation, also apply to circumstances where a cohabitant is applying for financial provision from their deceased partner’s intestate estate?

Yes / No

Don’t Know

If you wish, you can give reasons for your answer:

Time limit for making an application under section 29

1.76 As mentioned above, under section 29 of the 2006 Act, a surviving cohabitant can apply to a court for financial provision from their deceased partner’s intestate estate, if the deceased was domiciled in Scotland. The application must be made within six months from the date of death.

1.77 Section 78 of the Trusts and Succession (Scotland) Act 2024 (which has not yet come into force) extends the time limit in Section 29 of the 2006 Act to 12 months. Section 78 was inserted by amendment at Stage 2 and while the views of some stakeholders welcomed the provision others recognised that it was not a complete solution to the difficulties encountered in practice. It was suggested, for example, that an executor – the person appointed to administer and distribute the deceased’s estate - could delay their appointment in order to frustrate an application.

Question 6: Other than the time limit, what other practical difficulties are encountered by persons making an application for financial provision on intestacy under section 29 of the 2006 Act?